The dog/probable cause connection is one of the most problematic pieces of legal mythology around.  As it’s a firmly embedded concept, and as the Supreme Court has consistently refused to recognize that it’s as much probable cause as a coin toss, there appears to be no argument of sufficient persuasiveness to end the terror of the dog hit.

Reason has put together another excellent video connecting the problematic dog sniff with the even more problematic investigative use of fingers in people’s anuses.

The courts often use the phrase “shock the conscience,” which is itself a peculiar test since the degree of outrage needed to shock varies markedly from person to person, and the question of conscience, how much disgust we can tolerate before we hit the wall, makes for a line that no one can see. Continue reading →

One of the cool trends of internet lawyers is to offer unbundled legal services.  Draft the complaint, for example, but then leave the client to pursue the prosecution of a case on their own.  For the most part, it’s never had anything to do with criminal defense, as our duty of effective assistance of counsel doesn’t make allowances for only performing bits and pieces of the job.

John Rappaport at Chicago Law School has written a provocative article suggesting that we too should join the unbundling game, though not quite in the same way as civil lawyers.

The notion that criminal defendants are put to an all-or-nothing choice between the guilty plea and full-blown jury trial is both pervasive and wrong. Defendants can, and sometimes do, “unbundle” their jury-trial rights and trade them piecemeal, consenting to streamlined trial procedures to reduce their sentencing exposure. This Article explores what happens if, once and for all, we eschew the all-or-nothing framework and actually encourage these “unbundled bargains.” The parties could then tailor court procedures by agreement. Defendants, for example, could bargain for sentencing leniency by consenting to a six-person jury. Or the parties could agree to submit a case to private arbitration. Would such a world be better or worse than the one we have now? This Article takes a first cut at this question, making the uneasy case that the benefits of unbundled bargaining plausibly outweigh the costs.

For as long as I’ve defended the accused, it’s been part of my explanation of the system that our options are limited to fight or flight; the defendant can plead guilty (with variations for cooperation or not) or fight the charges, from motions through trial.  Assuming that the prosecution isn’t dismissed or evidence isn’t suppressed, trial was the only choice left for the defendant who did not wish to plead guilty. Continue reading →

As president of FIRE, the Foundation for Individual Rights in Education, Greg Lukianoff is no stranger to the trends on campus as evidenced by UC Berkeley’s Chancellor Nicholas Dirks’ invitation to be “civil.”  Greg has written a 9,000 word “broadside” entitled Freedom From Speech.

Eugene Volokh has been kind enough to offer some excerpts:

The increased calls for sensitivity-based censorship represent the dark side of what are otherwise several positive developments for human civilization. As I will explain in the next section, I believe that we are not passing through some temporary phase in which an out-of-touch and hypersensitive elite attempts — and often fails — to impose its speech-restrictive norms on society. It’s worse than that: people all over the globe are coming to expect emotional and intellectual comfort as though it were a right. This is precisely what you would expect when you train a generation to believe that they have a right not to be offended. Eventually, they stop demanding freedom of speech and start demanding freedom from speech.

The phrase “sensitivity-based censorship” strikes home, as has become glaringly clear from the demand under the guise of the right to express one’s opinion to be free from disagreement because it hurts someone’s feelings. Continue reading →

There aren’t many circuit court decisions on violations of the Posse Comitatus Act, so the 9th Circuit’s opinion in United States v. Dreyer was bound to catch someone’s attention.  Steve Vladick at Just Security explains the PCA:

[A]n 1878 statute that subjects to criminal punishment anyone who, “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws.”

In Dreyer, that’s what happened:

At issue in Dreyer are the actions of a civilian agent of the Naval Criminal Investigative Service (NCIS), who, without any specific military trigger or target, began an investigation into online criminal activity by anyone in the state of Washington. (Although the PCA’s plain terms apply only to the Army and Air Force, Department of Defense regulations have long provided that the PCA “is applicable to the Department of the Navy and the Marine Corps as a matter of DoD policy.” And although the government argued in Dreyer that civilian agents of the NCIS aren’t covered by those regulations, the Court of Appeals unanimously disagreed.)

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A 20-year-old Texas Tech sophomore, Michelle Mallin, was careful not to touch the cigarette the rapist left on her car seat. From the Lubbock Avalanche-Journal:

During the assault, Mallin fixated on a half-smoked cigarette and lighter the man left on her car seat. After driving her back into the city, Mallin was relieved the man left the evidence as he fled on foot.

“Don’t touch that,” Mallin thought as she found her way back to campus. “It should have his fingerprints on there.”

When she arrived at her dorm room about three hours after being abducted, Mallin called the Lubbock Police Department.

She told them about the cigarette and described her attacker — an African-American man with a medium build and short, curly hair.

Mallin picked Tim Coles out of the photo-array as the man who raped her.  His was the only color Polaroid of the 6 pictures. Continue reading →

For a while, it seems as if the killing Michael Brown in Ferguson, Missouri, had legs. It remains on our radar with images of residents and media corralled like vermin in their own country, a sight that seemed to finally resonate with people who were disinclined to sprain a synapse thinking unhappy thoughts.

But the legs finally gave out.  So what if the revelation of the purported theft of Swisher Sweets because of so many FOIA requests was a lie?  So what if the cop’s story came via unnamed (except for “Joise”), unknown witnesses, whose story was served up a call-in to a talk show, as opposed to named, scrutinized witnesses?  It was sufficient to blunt our vision and concern.  And really, that was all that was needed to take our focus off Michael Brown, the armed troops of police bringing order  back to Ferguson and the causes of misery in the suburbs of St. Louis.

Plus, there was a new iPhone coming out.

Two more witnesses have come forward.  Did you know about that? Now that you do, do you care? Continue reading →

In Part 1, I attempt to offer Judge Kopf’s explanation for why, despite his private pain at being in the position where he would feel compelled to do so, he would send a person he knew to be factually innocent to his death.  My hope is that I’ve been fair in my explanation.  While it’s poor rhetoric to put words into anyone’s mouth, this in particular isn’t the sort of issue where there should be any confusion.

When a criminal defense lawyer asks a judge to suppress evidence, with a defendant against whom the evidence of guilt is overwhelming and, to the extent it can be, conclusive, we exalt adherence to the law over pragmaticism.  We don’t ask that the defendant be cut loose because he deserves it, but because the law demands it.

This is a tough argument to make, as the crime may be heinous, or there are victims who believe that their version of justice will be served.  The victims have done no wrong, are sympathetic, and deserving of the best the law has to offer.  Yet, they have no role to play in our argument, as we rely on the greater glory of the law.

To some extent, this is what appears to motivate Judge Kopf’s explanation of how he can follow that law, perform his function as a judge, and yet order the killing of a person he knows to be innocent.  On its surface, it appears to be the same argument, flipped over.  It’s principled in the sense that a judge’s authority is not his, but derives from the law, which derives from the will of the people.  Sure, the glorious platitudes never seem to pan out as well for the defendants as they do for others in the system, but the system isn’t perfect.  There are even platitudes for that. Continue reading →

A few days ago, Judge Richard Kopf posted about a political blogger who calls herself “Digby.”

Digby, I want to discuss your Salon piece of yesterday, to wit: Scalia’s Utter Moral Failure Exposed. That’s the one with these subtitled lines, “He doesn’t think executing an innocent man matters. How on earth can such a depraved human be on our Supreme Court?”

Judge Kopf didn’t think well of Digby’s post for an array of reasons, but mostly because her disagreement with her simplistic view of Scalia’s outcome failed to recognize its place in law.

A perfectly moral, and a perfectly just, argument supports the assertion that our Constitutional order requires due process in the death penalty context as in all others but never perfection. If it were otherwise, and as Scalia tentatively reasons, the words of that great document would be different and, in particular, the notion of “democracy” in the death penalty realm would become meaningless. No lesser person than the great Justice Oliver Wendell Holmes once said, “If my fellow citizens want to go to Hell I will help them. It’s my job.”

Justice Antonin Scalia wrote in his dissent to the Supreme Court’s order directing the district court to consider Troy Davis’s habeas: Continue reading →

The first time I met Mike Horowitz was at Harry’s in the Woolworth Building.  It happened just before the Dirty Thirty scandal broke, where we sat down with prosecutors from the New York County District Attorney’s official corruption unit, my client and Horowitz, who would be handling the prosecution.

He wasn’t a warm and friendly guy.  I had been working with the DANY guys for a while, and we had become friendly and I gained a great respect for their integrity.  Horowitz was very official, which wasn’t unusual for a SDNY guy, and didn’t crack a smile at the jokes. He seemed like the kind of guy who slept in his suit.

At the end of the lunch, after each of us paid on separate checks, he handed my client a subpoena to testify.  This was a bush move, as my client was there voluntarily, had cooperated fully and Horowitz didn’t forewarn me that he would issue a subpoena so I could forewarn my client. It wasn’t a big deal, as my client intended to testify regardless, but just needlessly offensive. And official.  Yes, Horowitz was very official.

Michael Horowitz is now the Inspector General of the United States Department of Justice. It’s a big job.  Or at least it’s supposed to be.  Via Tim Cushing at Techdirt:

Rogue agency? The FBI seems to fit the description:

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Hi, all of you nice folks who believe that if courts would only allow the open discussion of jury nullification, the system would right a great many of its injustices.  After all, the platitudes favor the constitutional right to a jury of one’s peers, and your fellow citizens would certainly see things your way, right?  All justice-minded folks see things your way, right?  Because you are rational, thoughtful, normal, and what could go wrong?

In Newsday, it appears that Nassau County has decided to reinstitute the boondoggle of seizing the cars of people arrested for drunk driving.  Not convicted, mind you, but arrested. Because they wouldn’t be arrested if they weren’t guilty.

Nassau County police have begun seizing the vehicles of motorists arrested for driving under the influence of alcohol or drugs and holding the cars as cases proceed through the courts, county officials said.

County Attorney Carnell Foskey said the new system “gets the car off the road after the arrest and hearing and keeps the car available for forfeiture.”

Nassau previously returned vehicles to motorists after arrests. But by the time of convictions, the driver’s lease or financing agreement on the vehicle had expired, preventing the county from reaching a monetary settlement, Foskey said. Under the new system, Nassau could have a better chance to collect because it will already be in possession of the vehicle.

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