As should be readily apparent, rights clash all the time.  My right to free speech comes at the expense of someone else’s right to be left alone.  Your right to safety comes at the expense of my right to liberty.  Balancing rights is usually unsatisfying, as they then fail to serve any purpose very well.  For those who think this should all be simple and easy, these clashes offer some indication of how difficult it can be.

Bobbi Jo Floyd of Richland, Washington, got smacked in the face by a clash of rights, but both were hers and neither were inherently in conflict.  Via KOMO News:

The Second Amendment gives every law abiding American the right to bear firearms, but the two don’t coexist very well when it comes to marijuana. The conflict between federal and state law is putting police and gun-owning marijuana users in the middle.

It’s a conflict Bobbi Jo Floyd of Richland knows all too well.

Floyd is also an outspoken proponent of medical marijuana and an authorized patient.

“I’m also a Republican and I believe in my guns,” she said.

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During the #notallmen and #yesallwoman twitterfest, one twit stood out as the embodiment of the feminist rationale. Ironically, it was a twit by a man.

Put aside the logical and statistical failings of the metaphor, and consider instead its emotional appeal as a justification for women’s condemnation of the 90% for the actions of the 10%.  And if you’re a lawyer, wipe Blackstone’s Ratio completely from your mind.  This became a rallying twit, and was taken to heart by those seeking to justify their victimhood.

Cut to a video that went fairly viral, of drone flying Austin Haughwout being attacked by Andrea Mears, who was certain he was a “pervert” using his drone to harass women and take improper photos of Mears on the beach. Continue reading →

How many times have you wanted to respond to your prosecutor’s plea offer with, “are you on drugs?”  Apparently, it might be the correct response on occasion, as revealed by an article first published in the Washington State Bar Association’s NWLawyer and reposted at The Puddle.  From the perspective of a reader who enjoys made for TV movies on Lifetime, it’s a heart-warming story of survival and redemption.

From the perspective of a person responsible for the lives of other people, it’s a story of massive failure, at many levels.  While redemption is good, and a lawyer shaking off the yoke of addiction and surviving is laudable, the lack of recognition of the harm that may have been caused to others is disturbing.  Great for the lawyer. Not so great for anyone else. And troubling that neither the lawyer nor the empathetic realize it.

Douglas Wilson “Wil” Miller is a litigator in Seattle with a private practice focused on criminal defense, family law, and personal injury. During his career, he had the honor of working for three remarkable county prosecutors before going into private practice.

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For all those who complain that the states on the coasts think they’re better than the flyover states, there’s only one thing to say:  Pfffft.  See? We can be just as stupid as you are. Meet the New York State Senate.

For all the advantages that the Internet provides, it also assists individuals in perpetrating harm upon others. Social media allows for the widespread dissemination of information and images, and websites devoted to providing people with a means to perpetrate revenge upon former spouses, girlfriends or boyfriends have been created.

And so they passed S5946A-2013, which provides:

S  250.70  UNLAWFUL  DISSEMINATION  OF  AN  INTIMATE IMAGE IN THE SECOND  DEGREE.
A PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OF AN INTIMATE  IMAGE  IN  THE  SECOND  DEGREE  WHEN, WITH INTENT TO HARASS, ANNOY OR ALARM ANOTHER  PERSON, HE OR SHE INTENTIONALLY DISSEMINATES AN IMAGE OR IMAGES  OF  THE  SEXUAL  OR  OTHER  INTIMATE  PARTS  OF  ANOTHER  PERSON WITHOUT EXPLICIT  CONSENT OF SUCH PERSON TO DISSEMINATE SUCH IMAGE.

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Meet the United States Sentencing Guidelines Table:

And now meet the Drug Quantity Table.  It occurs to me that some of you have yet to be introduced, and since this post is about the internecine battle over the Sentencing Commission’s proposal to reduce drug sentences by two levels, and whether it should be fully, partially or not retroactive, you ought to make friends first.  Everybody say hi. Continue reading →

While waiting for the herd to make its way from the jury room to the courtroom, the judge always asks the same question: who will be the witnesses for the defense?  The judge asks for names so he can read them to the jurors to find out if anyone in the panel knows them.

My habit is to tell the judge that I have none, since I have no idea what the prosecution case will be and it is thus impossible to say whether the defense will call any witnesses.  While the point is accurate, it’s really a matter of protection.  Within an hour of my giving a name, two agents will knock on their door to explain to them the penalties and prison time they will face for testifying on behalf of the defense.

Sure, I prepare the witnesses for this certainty, as their names will eventually surface, but there is a very real difference between my telling them what will happen and the experience of guys with shields and guns threatening their family’s future.  They may love the defendant. They may love truth. But not always that much.

If the defense does this, it’s called witness tampering. It’s a crime.  When the prosecution does this, it’s called investigation and it’s not only cool, but applauded.  All things are not equal. Continue reading →

After writing about Nancy Leong’s post on inappropriate exercise of editorial discretion, I stumbled on a retwit by Nino Pribetic that struck a familiar note.

It led to a post that seemed to confirm that this was the person Nancy was writing about.  Some may find this odd, but I had no interest in figuring out the mystery earlier. It didn’t matter to me who the target had been before, as it wasn’t about the individual but the issue.  Yet here I was, face to face, so to speak, with the target of threats.

I know nothing about Sarah Kendzior.  I don’t know her politics or ideology. I’ve never read anything else she’s written.  I know nothing about her personally. She is nothing more than a disconnected name in the universe, and the only bit of information I have is that she told the twittersphere that she received rape threats.

The nature, number and details of those threats remain unknown.  For my purposes, it’s more than sufficient that Kendzior says so.

When I responded to Nancy’s post, I did so with my usual sensitivity: Continue reading →

One of the saddest characterizations seen in a long time appears in Kansas lawprof Corey Yung’s post at Concurring Opinions on George Wills and the politicization of rape.  He wrote:

George Will joins the chorus of conservative authors writing about rape on college campuses. As with other recent articles, Will’s piece downplays the problem of rape on campuses.

What makes this so unfortunate is that Yung seemed to be one of the few lawprofs who showed a sincere interest in an empirical analysis of the “problem,” rather than simply assuming it to be a huge problem in the absence of evidence that it was a problem at all.  The irony, of course, is that he complains of its politicization by conservatives, as though it hasn’t been politicized by feminists up, down and sideways.  It’s always the guy who strikes back to defend himself who gets caught. Continue reading →

The Sting.  Not only a great movie, but an extremely effective means of catching someone doing wrong under controlled circumstances.  The sting provides the opportunity, while the target comes with the predisposition.  If not, it’s entrapment, and that would be wrong.

But as effective as the sting may be going one way, it can be just as effective going the other, and that’s got longtime blogger and former defense lawyer turned prosecutor Ken Lammers pissed.

Baiters are the people who go around purposefully engaging in activity meant to arouse police suspicion and then act shocked SHOCKED!!! that police accost them. These are the guys who create houses that mimic the energy and heat production of a grow house, or walk through the middle of town with a pistol strapped to their hip and a rifle across their back, or violate a minor law where they know it won’t be ignored (often trespassing or a minor traffic infraction). Of course, baiters set it up so that the whole thing is captured on video with the purpose of putting the video online (sometimes they even use the police car video gotten through FOIA requests).

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One of the most pernicious rights in the Constitution is set forth in the Sixth Amendment, putatively guaranteeing a jury of one’s peers by the words, “an impartial jury.”  Inspirational and aspirational, though rarely if ever achieved.  But more importantly, what about their footwear?

The court is a place, like church, where evolving style often rubs against tradition. Everyone has an opinion about how lawyers, defendants and litigants should dress.

But what about jurors? Can a potential juror get the boot for violating a court dress code? Who enforces it?

These are questions that have come up in a federal mortgage-fraud case in Orlando, Fla., where two lawyers say their clients’ rights were violated when court security officers allegedly turned away a number of prospective jurors for violating the court dress code.

Apparently, the dress code in the Orlando division of the U.S. District Court for the Middle District of Florida is a bit on the conservative side: Continue reading →