Shortly after Judge Richard Kopf used the cyber-fashionable acronym “stfu,” revisisted the efficacy of judicial blogging, and made the proper decision to stay the course, with perhaps a lighter step, a post of some metacognitive significance slid in between that hasn’t received the attention it deserved.  This is why Hercules and the Umpire is such a valuable asset, regardless of whether the lingua franca doesn’t meet with the approval of every person with a keyboard.*

The under-appreciated post, stuck in the middle of a firestorm, noted that “once in a while this blog may do some good.”  Naïve as this may seem, some of us, even an Article III judge, hope to do some good once in a while.  This post discussed Sawaf v. United States, unpublished Sixth Circuit decision regarding prejudice under the Lafler and Frye decisions, that made it onto Doug Berman’s radar at Sentencing Law & Policy.

[W]e are compelled to conclude that Sawaf’s continued insistence as to his innocence does not foreclose the possibility that he would have been willing to enter a guilty plea in exchange for a 41-month sentence, despite his proclaimed innocence, if he had known about the risk that he might otherwise receive a 20-year sentence. Put simply, Sawaf’s claim that he is innocent does not conclusively establish that there is no “reasonable probability” that his decision would have been different if he had been adequately informed about its consequences.

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To those unfamiliar with the methods used by police to make absolutely certain that no possible criminal gets away, the story of Gregory Drummond’s arrest might seem incredible.  There is nothing incredible about it.  Indeed, it’s so ordinary as to evoke little more than a passing “tsk” from the casual reader.

Via RT.com:

Gregory Drummond and his dog were at the apartment building his girlfriend owns in the Bushwick neighborhood of the borough last September when police were called to the location for a domestic disturbance between two downstairs tenants.

When the police officers arrived, they talked to the second-floor tenant through a gate. “They then grabbed the second floor tenant through the gate and put their hands in his pocket, retrieved keys for the gate and the property, and entered the apartment,” the lawsuit said.

Once inside, they proceeded to search the other two apartments in the building, even though the disturbance was limited to the second-floor apartment. In that apartment, they discovered a gun and drugs. The tenant was arrested.

But so was Drummond.

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The irony of what police in Manassas, Virginia did, and plan to do, in inducing an erection in a teenaged boy by injecting him with drugs so that they can photograph his penis for evidence to prove that the image the boy took of himself was child porn, is beyond belief.  In fact, everything about this matter is beyond belief.

The prosecution of this teenager is wrong. The disparity of treatment between the boy and girl, who was first to sext an image of herself to the boy, is wrong. The forced photography of a teenager’s flaccid penis by police is bizarrely wrong. But what’s coming up makes all this pale in comparison.

For anyone who feels that badly written, poorly conceived, knee-jerk criminal laws will be sorted out by the good graces of police and prosecutors, this story should put the nail in the coffin of that ill-conceived nonsense. But there is nothing about this case that is more wrong, more disgustingly wrong, than what the police want to do to create evidence to nail down their conviction.

As much as I appreciate the dozen or more emails and twits about this story, Rick Horowitz has already written a post that captures the depth of all this wrongfulness.  There’s no need for me to pile on, as Rick has said what needs to be said. Go read Rick’s post.

Chief Judge Jonathan Lippman has sought to bring the spirit of helping others to New York lawyers by his creation of a pro bono requirement for admission to the New York bar in the hope of instilling a lifelong desire to help those who are truly worthy of pro bono publico.  Can there be anyone more worthy than Nassau County District Attorney cum United States Congressperson, Kathleen Rice?

When suit was brought against Rice for making false allegations against Jesse Friedman to thwart his effort to prove his innocence, a law firm stepped up to the plate to defend the poor, the downtrodden prosecutrix, Debovoise & Plimpton.  At first, Friedman attorney Ron Kuby, assumed the obvious, that this defense could prove both expensive and unhelpful for the county footing her bill.

But Debovoise’s Andrew Levine was deeply hurt by the suggestion that the firm’s interest was in filthy lucre, and requested that Kuby make clear that the firm would not be charging the County for its services. Oh no, these services would be pro bono.  After all, this was Kathleen Rice.

Sure, there are some who would think that Biglaw’s pro bono efforts would be better directed toward the wrongfully convicted facing imminent execution, perhaps children facing deportation, or even to fill the gaping holes in underfunded representation of the indigent.*  But do they not appreciate the worthiness of Kathleen Rice? What about her need for a million dollar defense on the cuff? Continue reading →

For anyone who hasn’t had the pleasure of defending against narcotics charges, the “indicia” of drug-dealing has always been a bizarre offer of proof.  The defendant had $324 in cash in his pocket?  Proof he’s a drug dealer, because drug dealers transact business in cash.  If he has no cash in his pocket, it’s proof he’s a major drug dealer, because major drug dealers have people who do the dirty transactions for them so they don’t get their hands dirty. See how that works?

It used to be the beeper that proved someone was a drug dealer, because drug dealers used beepers. Then it became cellphones. Same reason. What, you say?  Everybody used beepers and cellphones?  Ah, you don’t understand because you aren’t an expert in drug dealing.

For that purpose, you need a cop to testify.  The prosecution will put a cop on the stand, who the judge will invariably qualify as an expert based upon his “education and experience,” because he’s got tons of experience dealing drugs and learned all about it from the drug dealers teaching at the police academy, to explain to the ignorant groundlings on a jury why that cash in the defendant’s pocket is so fundamentally different than the cash in their pockets.  (Hint: It’s because he’s a criminal.) Continue reading →

Via Turley, the EEOC has charged Wisconsin Plastics, Inc., with discriminating against Hmong and Hispanics in violation of Title VII of the Civil Rights Act of 1964 for firing employees for not speaking English in the workplace.

EEOC Chicago Regional Attorney John C. Hendrickson stated that “Our experience at the EEOC has been that so-called ‘English only’ rules and requirements of English fluency are often employed to make what is really discrimination appear acceptable,. But superficial appearances are not fooling anyone. When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer’s business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin — and thus violates federal law.”

The EEOC said that the action was taken after relatively short interviews to judge the English ability of the employees. In 2009 the agency issued a controversial order making a workplace English rule illegal.

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At A Public Defender, Gideon writes yet again about the magically revealing evidence that somehow managed to fall between the cracks of Dejuan Hammond’s life when it was supposed to be disclosed.  The prosecution explains that they are disclosing it now, too late, out of an “abundance of caution.”  Hammond’s lawyer, Ted Shouse, is “furious” that evidence to which he was entitled five years ago is only surfacing now.

Gid does an excellent job of eviscerating the sham of the prosecution’s “oopsy” claims.  The prosecution is required by law to disclose, and to exercise due diligence to be certain that it has managed its file with sufficient competence to satisfy its duty.  Just as it concerns itself with amassing the evidence of guilt sufficient to nail the defendant at trial, the law requires it to show the same concern to disclosing evidence to the defense.

This would be an excellent place to point out the irony that the prosecution puts a person on trial for violating the law, while it simultaneously violates the law, but that only plays to the naïve. Reality is that we, the players in the system, both know this and live with this all the time. We have for as long as I’ve practiced law. Continue reading →

In response to the Supreme Court’s Hobby Lobby decision, Nebraska Senior District Judge Richard Kopf did something that caused some heads to explode.  He told the Supreme to STFU.  Ironically, the volatility of the decision, which was the reason Judge Kopf thought the Supreme Court’s insertion into such a controversial political issue was destructive, gave rise to calls for Judge Kopf to STFU by some, including some academics.

Lawprof Stephen Bainbridge, who made the specious assumption that Judge Kopf’s post was fueled by ‘thinly veiled” anti-Catholic animus, and later seized upon a joke written by the judge that he never cared enough about in the first place to know happened and still doesn’t grasp (and if Bainbridge doesn’t get it, it can’t be a joke), offered his deep thoughts:

Dude, you really need to STFU.

At Election Law Blog, lawprof Rick Hasen writes:

A judge who blogs should not say “STFU” to the Supreme Court. Continue reading →

Recently, I wrote about the problem arising from young lawyers, law students and law profs writing in a more mainstream forum on an interesting, topical issue about which they knew nothing.  Some people asked for examples, which I was reluctant to give.  My purpose wasn’t to out a law student as a dumbass. Their fault, if any, was seizing the opportunity to make themselves appear important at the expense of every reader’s intelligence. Can you blame them?

But an example appeared that’s both opportune and causes no qualms about outing.  New York Law School professor Robert Blecker, who has sought to make his scholarly bones as the foremost, if not only, law prof cheerleader of execution, somehow managed to get a piece posted at CNN Opinion.

What readers will remember isn’t the name Blecker, but that someone at the “prestigious CNN” thought the ideas so worthy as to give it space.  Little do they know how desperate websites are for content, but that’s another issue.  To the uninitiated, if it’s worth space in CNN, it must be true.  Or at least credible. Continue reading →

It’s not that I’m a big fan of Gilbert Gottfried, but the guy is an apology savant.

Let me begin by saying I’m sorry. I’m truly, deeply, unequivocally sorry. I apologize to the people I offend with this essay, and I apologize to the people who aren’t sure why they’re offended but are pretty sure they should be. I don’t know how I live with myself, and I hope you’ll find it in your heart to forgive me.

You see what I did there? It’s called a preemptive apology. I apologized in advance, before any of you had a chance to demand one.

When you say something publicly, beyond “hugs” and “you’re the ginchiest,” you’re going to piss someone off. Someone will disagree. Sometimes they will “respectfully disagree,” but more often they will be deeply upset at the lack of respect you’ve shown for their feelings. Continue reading →