In a New York Times op-ed. former AUSA turned Minnesota lawprof Mark Osler did a mitzvah by explaining the game played in drug sentencing.  After noting some of the problems recently raised about mandatory minimums, the pardon game and absurdly long Guidelines sentences, he goes on:

Unfortunately, none of this addresses a very basic underlying problem: We continue to use the weight of narcotics as a proxy for the culpability of an individual defendant, despite this policy’s utter failure. If a kingpin imports 15 kilograms of cocaine into the country and pays a trucker $400 to carry it, they both face the same potential sentence. That’s because the laws peg minimum and maximum sentences to the weight of the drugs at issue rather than to the actual role and responsibility of the defendant. It’s a lousy system, and one that has produced unjust sentences for too many low-level offenders, created racial disparities and crowded our prisons.

This echoes the issues raised by EDNY Judge John Gleeson in Dossie and Diaz, but brings it to a level that has provided the core for criminal enhancement for so long, and in so many ways, that it’s really not given much thought anymore by criminal defense lawyers.  Whether state or federal, the severity of a drug crime is dictated by the weight of the drugs.  That’s how it’s done, and we take it for granted. Continue reading →

On the one hand, the cops in Quincy, California, must have seen this as a wonderful way to make friends within the community, enhance people’s views of police and, well, show the townsfolk a good time.  It’s hard not to appreciate the police when they do something nice.

And it was a nice end result, with the added benefit that they probably made a few bucks, either personally or for the widows and orphans fund (which is a euphemism for beer).  Certainly, you don’t begrudge a cop making a few extra bucks on the side, right?

But for all the happy they spread, this is very wrong. Continue reading →

Police gave stuffed animals to two children…

So begins a post at Raw Story.  Is that not heart-warming?  It’s always great to read about something nice the police did, right?  Unfortunately, the rest of the first sentence isn’t quite so sweet.

Police gave stuffed animals to two children after a SWAT team raided their home last week looking for a previous tenant, but their parents are still waiting for officers to replace the door.

Oh crap.  Another wrong door raid? What?

[Jeremy Handley] said officers were looking for a man who rented the home nearly a year before his family moved in, and Handley said he’s upset that police failed to thoroughly investigate before bursting through the back door.

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Rep. Jackie Speiers has announced her intention to introduce a bill in Congress to criminalize revenge porn, as predicted. Via US News & World Reports:

The war against “revenge porn” is about to enter Congress.

Rep. Jackie Speier, D-Calif., is preparing to introduce legislation to criminalize the non-consensual online dissemination of lewd content by jilted lovers and hackers, her office confirms to U.S. News.

This is the big prize to the crusaders, as it accomplishes what state law cannot:

Most websites hosting revenge porn, however, cannot be forced to remove the content because Section 230 of the federal Communications Decency Act grants Internet companies legal immunity if third-party content doesn’t violate federal copyright or criminal law.
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A while back, I made a deal with Gerry Spence’s Trial Lawyers College. In exchange for my plugging his upcoming world tour, I would get his cowboy hat and buckskin coat.  I never thought they would go for it, but they did. So, I kept my word.

The hat came pretty quickly, but the venerable buckskin coat, well, not so much. It took a while, with alt headlines of “All Hat, No Cattle” and “Welching in Wyoming” (courtesy of TLC’s Scott Trimble, who has a gift for headlines) spinning in my head. But then, coat finally arrived.

Remember Jon Voight as Joe Buck in Midnight Cowboy, the only x-rated movie to win the Academy Award for Best Picture?

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I don’t get to watch it, because Dr. SJ has an issue with premium cable. She thinks we send Jimmy Dolan too much money already, and won’t send him a dime more than necessary. She’s very tough about things like that.  But I did see a video of it the other day, and it involved one guy having a sword fight with another guy, who he killed.

To put it mildly, the guy who was killed lost the sword fight. With extreme prejudice.

For all those who are fans of the show, take a memo: sometimes, you lose.  Most of the time, you get to fight another day, unless you lost with extreme prejudice. Then, you don’t.  I thought about this after a late night phone call with Marco Randazza last night.  Continue reading →

When Milwaukee County Deputy Joseph Quiles t-boned the car, he knew there was going to be a problem.  So he did what he had to do, lie through his teeth, blame the victim and rely on the kindness of his brothers in blue to make sure someone’s butt was protected. That butt was his.

Tanya Weyker was hurt so badly, she couldn’t blow into a breath-testing device or perform field sobriety tests.  But a Sheriff’s deputy arrested her for drunk driving anyway.  And the County hung those charges over her head for nearly a year, even long after blood tests proved she was perfectly sober.

Five months later, it was absolutely certain that she was stone sober.  Weyker made a rookie mistake when first asked what happened. She told the truth. Continue reading →

One of the smartest and funniest guys I know is a Catholic priest. This is a never ending source of jokes, which he takes with aplomb, because he knows that I don’t share his enthusiasm for Jesus, pomp and circumstance and trappings. I insist he’d be Buddhist except that black is slimming.

But why does his tribe get to invoke the name of his God before petty officials meet to decide mundane issues of state town?  Tradition.  The Supremes, in what is aptly described as a deeply fractured decision, upheld the tradition of the Town of Greece, New York, in having a clergy-guy give a ceremonial invocation before their monthly meetings.

It’s not that they’re Christian-centric, they say, but there aren’t any other churches in the phone book, and so they end up with a prayer like this:

“Lord, God of all creation, we give you thanks and praise for your presence and action in the world. We look with anticipation to the celebration of Holy Week and Easter. It is in the solemn events of next week that we find the very heart and center of our Christian faith. We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter. . . . We pray for peace in the world, an end to terrorism,violence, conflict, and war. We pray for stability, democracy, and good government in those countries in which our armed forces are now serving, especially in Iraq and Afghanistan. . . . Praise and glory be yours, O Lord, now and forever more. Amen.”

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Marketing guru Seth Godin offers an unpleasant truth.  What makes it unpleasant is that it blows one of the most common excuses out of the water.

“I didn’t have time”

This actually means, “it wasn’t important enough.” It wasn’t a high priority, fun, distracting, profitable or urgent enough to make it to the top of the list.

One of the questions/assumptions posed or imposed here is how it’s possible to write this blawg without it being all-consuming.  Having been over this ground too many times already, I won’t bore you with the details, but the relevant piece is that I choose to make the time to write.  Sure, I could use the time to post kitteh pics to instagram instead, but I don’t. I wake up every morning, look at a screen, and my fingers just start twitching. It’s what I do.

Every few days, Twitter and Facebook soak up a billion hours of ‘spare’ time. Where did that time come from? What did we do before social media was here? Weren’t we busy five years ago?

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Sharing is caring, which is why the government loves it so dearly.  The third party doctrine holds that when a person “shares” information, data, writings with a third party, there is no longer an expectation of privacy such that it is protected by the Fourth Amendment and a search warrant is required for the government to search and seize it.  And the most interesting man on the TSA security line, Stewart Baker, explains why this is right and just.

The theory of Smith [v. Maryland] is that I have a reduced privacy expectation in things I’ve shared with others. Life teaches us the same lesson.

When you hit “save,” are you “sharing” with the cloud?  Is it your way of telling Google employees that you’re fine with them to read your emails, that you’re part of a big happy family that has no secrets? Continue reading →