A call came from the father of a young man whose son was friends with mine.  It seems the young woman his son dated explained to her subsequent suitor that the reason they broke up was that he was “emotionally and physically abusive” toward her.  The new suitor, as one might expect, spread the word, and it quickly caught the attention of the dorm advisor.

As it turned out, the young woman’s story fell apart almost immediately.  She conceded that it wasn’t “really” true, but rather seemed like a good explanation at the time, both to justify the break up and make her appear more sympathetic to her new suitor.  She never thought it would spread to official channels. When it did, she showed the integrity to admit her lie.  No student was harmed in the making of this story.

But the father asked me, as a lawyer, what his son could do to protect himself from such accusations, recognizing that it could have devastated his son’s life had the young woman not owned up to her “white lie,” as she saw it.  I had nothing to offer. Anyone can say anything about anyone, and there is no neutral witness in the bedroom. Continue reading →

My twit, upon learning that the Standing Committee of Correspondents of the Senate Press Gallery rejected Tom Goldstein’s appeal for credentials for SCOTUSBlog summed it up.

Others have addressed the details.  Eugene Volokh writes that the committee blew it, most notably in its failure to adapt its criteria to the budding reality that its definitions of worthiness for press credentials excludes those with the greatest subject matter expertise. Continue reading →

Jesse Herald may not be the guy you want to have pick up the kids from school, but then, that wouldn’t make him particularly unique.  What does is the plea deal he cut for a child endangerment charge that left him doing five years less than he might otherwise.  Via Komo News:

A Virginia man who has fathered children with several women has agreed to get a vasectomy to knock up to five years off his prison term in a child endangerment case that has evoked the country’s dark history of forced sterilization.

None of the charges against Jessie Lee Herald, 27, involved a sexual offense. Shenandoah County assistant prosecutor Ilona White said her chief motive in making the extraordinarily unusual offer was keeping Herald from fathering more than the seven children he has by at least six women.

You may be wondering what Herald’s fathering seven children by six women has to do with his crime. Continue reading →

When Josh Blackman noted the article in Vanderbilt Law Review, he felt it necessary to say that Judge J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals wasn’t trolling.  Given his background and position, I daresay Josh is right.  Judge Wilkinson believes what he writes when he defends the criminal justice system:

As a judge with faith in that system, I am dismayed by the relentless insistence that we have it all wrong. Of course the system, like all human institutions, has its share of flaws. But the attacks have overshadowed what is good about the system and crowded out more measured calls for reform. The critics claim that major aspects of American criminal justice work to the detriment of defendants, when actually the reverse is often true. It is time for a more balanced view of our criminal process, which in fact gets a lot of things right.

My own reaction to the critics is one of gratitude for their contributions but dismay that they have allowed the pursuit of perfection in criminal justice to become the enemy of the good. Much about American criminal justice is indeed good. The system provides considerable protections for the accused and sets proper limits on the brutality and deceit that human beings can inflict upon each other.

The meme that perfection is the enemy of the good has its place.  It works well for toasters and roofing tiles that look like they’re slate, but really not.  But not only does its applicability to the criminal justice system not fit well, but it takes for granted that the system is good as it now stands.  That’s not how Judge Wilkinson sees it. Continue reading →

Some folks complained to me about my having nothing to say about the Hillary Clinton as defense lawyer fiasco propagated by the Beacon Free Press, and then seized upon by such thoughtful and credible websites as Jezebel.  Quit yer bitching.

First, it’s Hillary.  This is a law blog, not a political blog.  No political philosophy prevails here, much to the consternation of those who believe theirs should, and the concerns of criminal defense lawyers are often at odds with partisan politics of all flavors.

Second, Hillary had a big mouth.  Regardless of whether you see her assertion that her client, accused of raping a 12-year-old, was guilty as being fact or opinion, she had no business, absolutely none, discussing the question of her client’s guilt under any circumstances.  It’s hard to imagine that confidences weren’t breached here, though it would be impossible as an outsider to know exactly where, but the point remains that if she had kept her mouth shut, there would be no issue. She talked. She shouldn’t. She is not the poster girl for defense discretion. Continue reading →

King County, Washington, Sheriff John Urquhart called it “a slap in the face,” demonstrated a talent for understatement and cluelessness.  Had Darrion Holiwell been a little more gentle with his second and third wives, Urquhart might still be clueless.

From the Seattle Post-Intelligencer:

Darrion Holiwell, a 19-year veteran of the sheriff’s office, was a SWAT officer and the chief firearms instructor who worked at the Ravensdale Range where the agency’s SWAT team trained, in addition to local FBI agents and King County Jail staff.

Plus, he ran his own firearms training business, called Praeter, where he was the star of his own advertisements.

But that capped a laundry list of things Holiwell is accused of doing for which no cool pictures were taken. Continue reading →

Some great stories. Some lame. Some funny. Some not funny at all. But whether the stories brought a smile to your face, or catharsis for the teller, it reminds us that we are all boneheads once in a while. Sometimes, the product of our misstep is good for a laugh at our expense, and sometimes we suffer for a lifetime.

One commenter wanted the jacket more than anyone else, and it showed. After consultation with some guy from Wyoming, who strongly urged me never to bother him again with such nonsense, a winner has been chosen.  With deep appreciation and admiration of his literal embrace of the “pic could help” piece of advice, the winner is… Continue reading →

Crossing a state highway patrol officer who had seized my client’s tractor-trailer filled with narcotics at the suppression hearing, he testified to something different than he wrote in his report.  The wheels turned as I carefully framed the question so he couldn’t weasel out of his hole, and closed the trap.  He responded:

Well, I couldn’t put that in the report because the judge wouldn’t like it.

Nailed. I had him.  Caught the cop dead in a lie, and it doesn’t get any better than that.  It was one of those fist pump moments, and I imagined the judge ripping the prosecution a new one for outright lying to the court.  So what happened.

Suppression denied.  Not another word about it. Move along. Continue reading →

There are curmudgeons, and there are people who play curmudgeon on the internet. Under the pseudonym, Otto Sorts, someone is pretending to be a curmudgeon at a marketeering/futurist blog called Attorney At Work.

Otto Sorts has been reading law since before Martindale met Hubbell. Of Counsel at a large corporate firm that prefers to remain anonymous, Otto is a respected attorney and champion of the grand tradition of the law. He is, however, suspicious of “new-fangled” management ideas and anyone who calls the profession the legal “industry.” When he gets really cranky about something he blogs here at Attorney at Work.

At a large firm “that prefers to remain anonymous”?  Perhaps because the firm’s primary office is in Bangalore?  The problem, aside from the ability to use moderately correct English, is that this strikes me as a lie, a phony, where the marketeers have created a fictional old man as a foil to their attempt to convince youngsters to love and appreciate their “new fangled” ways.

I wouldn’t have known about this scam blog but for the ABA Journal’s blog whisperer mentioning a post, where this phony curmudgeon Continue reading →

“After the Court of Appeals threw out the his statements of guilt, we did the best we could with what we had left,” said Assistant District Attorney Christa Book. “I’m sorry that I could not bring Matthew justice.”

The Albany Times-Union called the acquittal “stunning.”  Like beauty, stunning is in the eyes of the beholder.  That Adrian Thomas was retried following the reversal of his conviction by the Court of Appeals is ugly.  That the prosecutor, in the face of the ruling and the defense evidence that Adrian’s son, Matthew, died not from any abuse, but from a bacterial infection, still believed that he committed murder was stunning.

Coffey used testimony from outside medical experts to argue that the baby died of a bacterial infection and not through any action of his father.

Thomas was convicted in 2009 of second-degree murder in the boy’s death, but the state Court of Appeals ordered a new trial earlier this year. The justices, in a 7-0 decision released in February, cited heavy-handed tactics used by Troy investigators, who interrogated Thomas for almost nine hours before he demonstrated how he threw the child.

The acquittal comes nearly six years after 4-month-old Matthew died, and Troy Police Sergeant Adam Mason manipulated a confession out of Thomas because an ER doc mistakenly jumped to the conclusion that the death was caused by abuse.  The defense tried to get the court to allow a false confession expert, Richard Ofshe, to testify, but the court instead went with the prosecution’s “expert,” Paul Cassell, who explained that false confessions don’t really happen. Continue reading →