At the WaPo Conspiracy, Orin Kerr wrote about a decision by Judge B. Lynn Winmill, out of the District of Idaho, in Smith v. Obama on the constitutionality of NSA surveillance.  While Judge Winmill applied the third-party doctrine from Smith v. Maryland, as he was constrained by precedent, he added this astounding language.

Judge Leon’s decision [in Klayman] should serve as a template for a Supreme Court opinion. And it might yet. Justice Sotomayor is inclined to reconsider Smith [v. Maryland], finding it “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” See U.S. v. Jones, 132 U.S. 945, 957 (2012) (Sotomayor, J., concurring). The Fourth Amendment, in her view, should not “treat secrecy as a prerequisite for privacy.” Id.

But Smith was not overruled, and it continues – along with the Circuit decisions discussed above – to bind this Court. This authority constrains the Court from joining Klayman.

In case you were sleeping, Judge Leon went out on a limb, rejecting the third-party doctrine in Klayman. Continue reading →

This video, by a guy who is only identified as “Green,” speaks pretty much for itself.

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In order to appreciate the insignificance of the United States Sentencing Commission’s recommendation that guideline drug sentences be reduced by 17%, one needs to remember the pre-Mistretta days of America. Back then, drug crimes were almost entirely handled in state court, and the crack epidemic had hit the country like a plague.  It was, to be blunt, very bad times for drug and crime, with regular shoot-outs in the streets between groups at war over turf.

Yet even then, with the experiment of the unduly harsh Rockefeller Laws proving to be an utter failure to serve their theoretical purpose of deterring drug crime, no one dreamed that America would lead the civilized world in incarceration.  Almost 30 years later, the system has so internalized the guidelines that we fear this downward departure.  Megan Quattlebaum explains:

Four things struck me as I read the reports. First, the Commission estimates that, if the changes were made retroactive, 51,141 individuals who are currently in prison (an incredible 23 percent of the total population) would be eligible to seek a reduction in their sentences. That a large number of people will be affected is not surprising — almost half of all federal prisoners (48 percent) are incarcerated for drug crimes. But what is surprising is that even if all 51,141 were to get reduced sentences, we would have barely begun to bring the federal prison population down to pre-drug war levels. We incarcerated approximately 25,000 people in federal prisons in 1980. By 2013, that number had risen to over 219,000.

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First, an excuse. I neglected to read Chuck Klosterman’s Ethicist this Sunday, but it wasn’t my fault.  Dr. SJ glommed up the magazine to do the crossword puzzle before I had a chance to look at it, and by the time she finished the puzzle, I was busy cooking bacon with my son for the ride back to Cambridge.  Priorities, right?

When Judge Kopf posted about a letter from a female law student, gently daring the internets to attack, my omission struck hard.  How?  How did I miss this bit of ethicalismisticity from Chuck Klosterman. Because he’s The Ethicisit. The New York Times says so, even if I haven’t always deferred to his judgment when it comes to legal matters.

But given the nature of the query, and some of the subjects which have prominently appeared at SJ recently, I cannot leave this alone (scroll down to the second letter, entitled “If it pleases the court . . . “).

I am a young, female law student who represents indigent clients in criminal matters. I have learned (both from professionals at my school and from studies on subliminal biases) that female attorneys are more likely to be taken seriously if they have straight hair and wear makeup, skirts and heels. This is not a norm I want to perpetuate. However, I know that I have an ethical responsibility to represent my clients to the best of my ability. But do I have to conform to gender norms I find oppressive if there is a chance it will help my client? NAME WITHHELD

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There is a tacit understanding in the courtroom: Lawyers treat judges with the trappings of respect. Judges don’t abuse the privilege. When a lawyer fails to do so, he gets sanctioned, and no one would hesitate to say that he deserved it. After all, this is the game we play, where we call a guy “your honor” and laugh at his jokes for no better reason than he licked enough stamps in the party leader’s backroom to earn a robe.

But in return, we expect a few things. No, we demand a few things.  We demand that the judge let us do our job, and that he does his.  And we demand that the judge pretend to act with “judicial temperament,” and not fly off the handle like some street thug with a bigger stick than ours.  When this breaks down, all hell breaks loose.

Via Gideon at A Public Defender, Brevard County, Florida, Judge John Murphy broke the contract. Continue reading →

One of the questions asked regularly is why bother with gender politics and the definitions of language relating to sex crimes.  This is why. From Jacob Gershman at the WSJ Law Blog:

A North Carolina judge has stopped Duke University from expelling a male student who was accused of rape by a female freshman.

Following the lacrosse false rape fiasco, Duke has become particularly sensitive to issues and allegations of sexual assault and rape.  As a result, Duke has fallen willingly jumped down the rabbit hole:

Superior Court Judge W. Osmond Smith III on Thursday rejected Duke’s effort to dismiss a lawsuit filed by the accused student, Lewis McLeod, a senior who accuses the university of violating his contractual rights. The ruling blocks Duke from expelling him at least for now. Continue reading →

The New York Times Room for Debate seized upon the Isla Vista murders to raise the question of why Elliot Rodger flew under the Santa Barbara sheriff’s radar.  It posed the question:

Once again, senseless slaughter has raised questions not only about how mentally disturbed people can obtain guns, but why authorities can’t intervene to prevent violence.

Do the laws regarding mental health professionals’ duty to warn the authorities of a threat need to be toughened to make them more effective?

The question itself is disturbing, aligned with the sheriff’s excuse for the failure to identify a dangerous mentally ill young man.  Continue reading →

As stories of terror go, it was a flash in the pan.  The likely reason was that it ended promptly, with the death of Miriam Carey, reports explained, who “tried to ram a barricade in front of the White House before speeding off.”  So she was shot to death from behind, as her one-year-old in a car seat survived.

Peculiar story, for sure, but there were a series of explanations for such bizarre behavior. Drugs. Mental illness, which overcame the suburban Connecticut dental hygienist mother. Who knows why someone would ram a barricade at the White House.

The results of the investigation might provide some explanation, except nothing has been publicly released. Same with the video outside the White House. Eight months later and there is nothing. Continue reading →

There is a guy who walks around Tuesday evening Cruise Night handing out flyers for the car show he runs, Cruizin’ For A Cure.  I went to it the first year it was held, and it wasn’t for me.  Mostly American cars, where I’m a British car guy, and the judging of the foreign cars (one class for all) wasn’t very good. So I passed after that.

The problem was that the car show wasn’t just for the sake of having a car show, but as the name suggests, it was charity-focused: he was raising money for prostate cancer.  You see, he was a prostate cancer survivor, and wanted to do something to help. Great cause and I respect his efforts.  But when he asked me if I would come, I told him no. I explained why, but he got angry with me. Didn’t I realize how serious prostate cancer is? Didn’t I want to help with the cure?  Didn’t I appreciate his cause?

Well, in fact I did.  I had nothing against his cause at all. It just wasn’t my cause. I have a charity to which I provide a great deal of support. He doesn’t contribute to my cause, but I understand why. Yet, he couldn’t understand why I didn’t back his cause, because his was so worthy. Continue reading →

It may not have been the best plan of action, but hey, this was Franklin County, Maine and it’s not like they have the volume of warm bodies that Brooklyn would produce on any given day.  So they did the best they could and at least they tried to do something.

From the Morning Sentinel:

Attorney Walter Hanstein, an organizer of the effort to raise pay for court-appointed lawyers, said it was unlikely that attorneys would refuse all court appointments. Hanstein and attorney David Sanders asked lawyers to refuse sexual assault cases, a category that only a small group of attorneys are approved to take as court-appointed counsel in Franklin County.

The effort began two months ago when Hanstein and attorney David Sanders told the Franklin County clerk’s office that they would no longer serve as state-paid attorneys for low-income defendants charged with sexual assault, until the wage is raised from $50 to $70 per hour in all court-appointed cases.

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