Having served as chair of a very active amicus committee for the New York State Association of Criminal Defense Lawyers years ago, it became clear how amicus could use its platform to bring issues and arguments to the fore that the parties might otherwise have neglected or been precluded from doing.  It was a powerful opportunity.

But one guiding rule was that anything offered had to be accurate in terms of being fully supported.  The idea was that claiming a fact not in evidence, or unsupported, would destroy credibility and render the effort worthless.  The judges would laugh at us if we didn’t maintain our cred.

Apparently, that’s not exactly the case in all courts, or at least not before the United States Supreme Court.  Via Adam Liptak in his New York Times Sidebar column:

The Supreme Court received more than 80 friend-of-the-court briefs in the Hobby Lobby case. Most of these filings, also called amicus briefs, were dull and repetitive recitations of familiar legal arguments.

Others stood out. They presented fresh, factual information that put the case in a broader context.

The justices are hungry for such data. Their opinions are increasingly studded with citations of facts they learned from amicus briefs.

Continue reading →

It’s not always easy to get the public to adopt extant technology into their mindset, but one piece of equipment appears to be proving far easier to embrace than others: cameras.  This may be a result of a television mentality, where people expect, maybe demand, to see evidence of what a witness claims, or maybe the pervasiveness of images has taken its toll.

A company that makes police cameras, Brickhouse Security, has conducted a survey with some interesting results.  While the survey of 500 people may be inherently suspect based on its backer, it nonetheless is worthy of note:

• 72 percent of people polled think police should be required to wear cameras
• Of the over 500 American polled, 360 people thought police body cameras should be turned on whenever on duty and 152 thought they should be turned on during interactions with civilians
• 75 percent of people polled would think an officer is hiding something if the camera is not activated
• 62 percent of people polled said, if they were a cop, they would buy a body camera for themselves, even if they were not required
• 83 percent of people polled don’t think body cams are an invasion of privacy
• 79 percent of people polled think police body cameras will reduce actual use of excessive force; while 81 percent believe it will also reduce accusations

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The bullet that struck Hofstra student Andrea Rebello and took her life was a tragedy, but it also set in motion a series of excuses designed to obfuscate what happened and shift blame away from the officer who pulled the trigger at all costs.  Her family’s lawyer, David Roth, wasn’t having any of it.

A State Supreme Court judge has ordered Nassau County police to turn over investigative files to the family of a Hofstra student who died in an off-campus police shooting after an armed robber took her hostage.

Andrea Rebello’s family is entitled to access to the records, which include the entire files from the police department’s homicide squad and internal affairs bureau relating to the deadly shooting on May 17, 2013, Justice Karen Murphy’s order says.

“We’re hopeful that this will shed light on what really happened that night,” said Manhattan attorney David Roth, who filed a wrongful-death lawsuit against the county and police in May on behalf of Rebello’s family. “The records will certainly be germane to the claims that we’re making in the case.”

At the outset of every tragedy, there is a call to await the investigation, await the facts, withhold judgment until all the evidence is gathered and then, and only then, will we be capable of assessing fault.  Continue reading →

For quite a while, I was constrained to accept that my view of what a woman had to endure in her daily life was limited to that of an outsider, and an outsider who wasn’t really around young women very much.  While it was necessarily integrated into my commentary, it was from a distance, and perhaps I was missing too much to offer a meaningful view.

When Lawprof Nancy Leong wrote a post about an interesting experience, to show the “cumulative effect of street harassment,” I eagerly followed. Contrary to popular belief, I want to know more, not just confirm my bias.

One of my former classmates at Stanford Law School has started a new Tumblr — Not Your Fucking Sweetheart — that documents the ongoing problem of street harassment. Her immediate goal is to document a month of street harassment in her life in a major metropolitan area (in this case, Washington DC, which is notorious for street harassment).

The experiment went on for the month of August, which struck me as a good month for such an experiment as people would be out on the street, thus eliminating the possibility that harassment was reduced by bad weather.  And I was prepared to accept Nancy’s assessment that Washington, D.C. was notorious. Continue reading →

The Economist posits a question:

WHO runs the world’s most lucrative shakedown operation?

Yes, that’s right. Of course it’s the United States of America, our beloved government doing what it has to do to regulate business so that it meets the great many rules that we demand of it.  Well, perhaps not exactly we, but rather the fact is that a lot of people really hate big business. Liars, cheaters, greedy scum. It needs to be regulated, because how else can we protect the spotted salamander?

Fair enough.  Let’s forget the flip side, that it provides the goods and services we rely upon to live, because those iPhones won’t make themselves, and gives us the jobs that allow us to buy the next shiny thing.  If they don’t make a profit, they can’t continue to exist, even if that smacks of greed.

But the regulatory system is backed up by criminal penalties, even though the regulation has all the attributes of civil dispute, where the issue is one of monetary penalties should a corporation not meet a baby prosecutor’s expectation of how business ought to happen. Continue reading →

When the rules for competence to stand trial were crafted, there was neither concern nor thought about the intellectually challenged.  They were then called “retarded,” which has since fallen out of favor though it provided a clearer understanding of what that challenge was.  It meant a person whose intelligence was below a certain level, 70 on an IQ Test.

Not all intellectually challenged defendants were incompetent. Some could understand the proceedings and assist in their own defense, but some couldn’t.  They lacked the capacity.  The rules, however, were created for the protection of a defendant’s rights, to assure that a defendant wouldn’t be put on trial without the ability to defend himself.  Like so many rules, they seemed like a good idea at the time, only to later be perverted to serve a different master.

It’s one thing when the rules were applied to the insane, with the potential that they might improve with therapy and medication to the point where they could be competent. But when applied to the intellectually challenged, they reflected systemic ignorance.  The mentally retarded do not get unretarded; they cannot be “cured” because they aren’t ill.  For better of worse, they are what they are. And what they are is intellectually disabled, and they will be for the rest of their lives.

Dan Sullivan writes in the Tampa Bay Times of the plight of Dreek Drayton. Continue reading →

There are a few things that no one disputes.  Martin Olin, a 65-year-old lawyer and music industry guy who was riding his bike in the bike lane, was dead.  Los Angeles County Deputy Sheriff Andrew Wood ran Olin down because he was on his computer while driving.  And Martin Olin is still dead.

Wood was returning from a fire call at Calabasas High School and was on patrol when the accident occurred.

‘He was responding to a deputy who was inquiring whether the fire investigation had been completed,’ the letter from the prosecutor’s office stated. ‘Since Wood was acting within the course and scope of his duties when he began to type his response, under Vehicle Code section 23123.5, he acted lawfully.

This came in explanation of why Deputy Wood would not be prosecuted for killing Martin Olin.  It seems when one is playing with a cop computer rather than an iPad, the guy they kill is official collateral damage. This makes all the difference.

‘Wood briefly took his eyes away from the road precisely when the narrow roadway curved slightly to the left without prior warning, causing him to inadvertently travel straight into the bike lane, immediately striking Olin.’

Continue reading →

Christopher Lollie was like most of us.  A father who arrived a bit early to gather his kids from school, the New Horizon Academy, so he had ten minutes to kill.  A weird phrase, time to kill.  So he sat down in the skyway in St. Paul, Minnesota.  That’s what good guys do.

Someone apparently didn’t care for his looks.  According to Conor Friedersdorf, Lollie had dreads, and the skin to go with them, so the police were called because there was a guy sitting there, black and all, and who knows what terrible things that can mean.  And the police came.

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An academic has called for an amendment to a major US law to help victims of revenge porn: the online posting of nude or sexually explicit photographs or videos of a former lover without his or her consent.

Memo to Taylor & Francis Group:  A third-year law student is not an academic.  Generally, there are few voices less worthy of note than a law student’s.  That said, University of Missouri Law School’s Allison Tungate’s note, “Bare necessities: the argument for a ‘revenge porn’ exception in Section 230 immunity” is better than most of what’s been promoted as a cure up to now.

‘Revenge porn’ is the online posting of nude or sexually explicit photographs or videos of a former lover without his or her consent. Despite the malicious intent behind revenge porn, victims are provided with little to no relief due to Section 230 of the Federal Communications Decency Act, also known as the ‘Good Samaritan’ provisions. Section 230 unambiguously provides blanket immunity for website operators and Internet service providers that feature user-generated content, including revenge porn.

Granted, little effort is put into defining, and refining, the superficial definitions used in the article, but that’s not unusual for law students. They tend to take a lot for granted, like “we know it when we see it.” Continue reading →

If you liked pogroms, you’ll love this idea. Via CBS News:

In the eyes of many progressives and civil rights advocates, the police shooting of unarmed black teenager Michael Brown in Ferguson, Missouri earlier this month was a tragic and familiar story: the latest example of the law enforcement community’s prejudiced administration of justice.

Now, a group of notables and activists, joined by several members of the Congressional Black Caucus, are demanding the establishment of a federal police “czar,” employed by the Justice Department, to oversee local law enforcement practices and help prevent racial bias in policing.

It’s curious that the progressive demand is for a Czar.  We had a drug Czar. We had a homeland security Czar. We had real a Czar until the revolution of 1917 took Nicholas offline.  The pseudo-title seemed a bit more appropriate when the purpose was to use overt force to destroy someone.  Perhaps they think a federal police czar will, what?, destroy the vestiges of racism in America’s police forces?  Continue reading →