In the afternoon, Dr. SJ and I drove over to Jekyll Island, a quaint little place with some beautiful old houses and a pier with a place called “Rah Bar.”  We thought it was either a cute name or a Georgian typo.  As it turned out, it was both.  We ordered clams on the half shell, which appeared cooked, and a plate of crawdads.  We also ordered some libation.

As we sat there, discussing the relative virtues of Friedrich Nietzsche and quantum mechanics, an email came from a friend.  He was a new lawyer, but not a young one. And he told a story of his frustration and empathy, about how a client was treated fairly by one judge, while another was burned.  The idea that it was all so random, so pointless, was breaking his heart.  He will remain nameless for now, but can out himself if he wants. I would recommend he keep his identity private, but that’s just me. Continue reading →

SDNY Judge Jed Rakoff hasn’t been afraid to ask questions and challenge the “way things are,” which is most assuredly a virtue in an Article III judge. He sees the problem, according to his speech at USC Law School:

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

Five years? I wish. But still, his sentiments are clearly on target, that we’ve become a system of plea bargains, with “only 2 percent of cases in the federal system go to trial, and 4 percent of cases in the state system go before a jury,” and the prosecution dictates what that bargain will be. Continue reading →

The idea was floated four years ago.  At the time, I thought the idea had some merit, at least enough to warrant further consideration.  On the surface, many thought the idea was demeaning and unprofessional.

Maybe legal services from your local Wal-Mart is the right idea.  Maybe it’s got the seeds of the right idea.  Maybe Wal-Mart, via economy of scale or some of its other tricks, can allow lawyers to provide quality legal services at a significantly lower cost to consumers.  I’m not saying it can, but I am saying it’s time to start thinking seriously about such notions that are immediately written off as “absurd” by the bar, especially the formal groups who love to spout platitudes but never hold the hand of a client whose life has been ruined by the beloved system, “not perfect but the best ever created.”  We’ve got a platitude that forgives us every failure.  Spouting platitudes doesn’t do much to help clients.

The Wal-Mart lawyer is now a reality. Axess Law has opened offices in a couple of Wal-Marts in Canada.  Continue reading →

If nothing else, you’ve got to love the name.

While the “advice” may be pedestrian, shut up and be polite, one has to wonder whether a drunk driver is really in a position do much reading, no less thinking.  And should they blow?  Most lawyers say emphatically “no,” but the video doesn’t reveal whether that piece of advice, the most critical question confronting someone stopped for drunk driving, is given. Continue reading →

But if a corporation is a “person,” why not an animal?  That seems to be a common fallback question by those who either support the idea, or just hate Citizens United enough to use it whenever possible.  But its leading proponent, Gary Wise, is on a mission:

Mr. Wise began developing his animal personhood strategy after struggling with ineffective welfare laws and regulations that fail to keep animals out of abusive environments. Unlike welfare statutes, legal personhood would give some animals irrevocable protections that recognize their critical needs to live in the wild and to not be owned or abused.

Before you knee-jerk shout, “are you kidding me,” Wise has not only pursued this course for more than 30 years and taught it at Harvard, but he’s now got a case pending in New York:

His team, the Nonhuman Rights Project (NhRP), selected as its first plaintiffs four chimps living in New York: Tommy, Kiko, Hercules and Leo. He chose these animals in large part because New York’s common laws are favorable to habeas corpus lawsuits, and because there are great ape sanctuaries that could accommodate them. Continue reading →

In a remarkable post, Radley Balko revisists Boston a year after the marathon bombing.  Boston landmark, Faneuil Hall, bears the nickname “the cradle of liberty.”   On top is a grasshopper weather vane.

Knowledge of the grasshopper was used as a shibboleth during the Revolution period. The people would ask suspected spies to identity the object on the top of Faneuil Hall; if they answered correctly, then they were free; if not, they were convicted as British spies.

One could never be too careful when liberty was at risk. Not in Boston. Not in the cradle of liberty.  When the dry goods merchants decided to risk their lives and fortunes to free themselves from England, they understood the risk demanded by freedom. They understood that good people would die in the fight. Freedom was worth the risk.

Since then, things have changed. Continue reading →

In a post entitled “Merciless,” Judge Kopf tells the story of Stephanie Lomax, now known as Hamedah Ali Hasan, who he originally sentenced in 1993 after trial for crimes that occurred from 1988 to 1991.

The point of the story was to explain the twisted path Ali Hasan took to reach an eventual sentence of 262 months in prison, almost 22 years, for 5.9 kilograms, just under 13 pounds, of crack.

The point of the story was, despite Judge Kopf’s support, that the absurdly harsh sentence imposed was never given serious consideration for clemency by the President or Department of Justice.

She had served between 18 and 19 years in federal prison having convinced everyone with knowledge that she had been fully rehabilitated long before. The child that Hasan gave birth to in prison was nearly an adult. The clemency provisions of the Constitution and our laws on clemency had failed Hasan and the rest of us. Her treatment was merciless rather than merciful.

Continue reading →

The name of the case is Paroline v. United States, but the case is all about Amy. Amy, Amy, Amy.  As I read the syllabus to the opinion, itself ponderous, my thoughts went to whether a young woman would have made herself the key figure in a war for victims’ rights had she known where this would go.

Her champions promoted this as an emotional plea, using Amy as the sacrificial lamb.  Did anyone step back, detach themselves from their emotional bondage and give Amy a cold, hard, reasoned view?

This concern was bolstered when I saw that Paul Cassell, who argued on Amy’s behalf before the Supreme Court, posted her reaction at WaPo Conspiracy:

[M]y co-counsel (James Marsh) and I have just had a chance to communicate with our client, Amy.  Here is her reaction:

I am surprised and confused by the Court’s decision today.  I really don’t understand where this leaves me and other victims who now have to live with trying to get restitution probably for the rest of our lives. The Supreme Court said we should keep going back to the district courts over and over again but that’s what I have been doing for almost six years now. It’s crazy that people keep committing this crime year after year and now victims like me have to keep reliving it year after year. I’m not sure how this decision helps anyone to really know if, when, and how restitution will ever be paid to kids and other victims of this endless crime. I see that the Court said I should get full restitution ‘someday,’ I just wonder when that day will be and how long I and Vicky and other victims will have to wait for justice.”

Continue reading →

Until yesterday, we had a relatively clear rule for police to follow: an anonymous tip must be corroborated before it rises to the level necessary to seize a person.  Then the Supreme Court decided Navarette v. California.  Interestingly, the 5-4 majority opinion was written by Clarence Thomas, with the dissent penned by Nino Scalia. Now I realize that people think I’m loopy for not hating Nino as much as I should, but it’s cases like this that should remind us of why he’s so much fun on the Court.

The majority held that an anon tip, of the sort that once needed corroboration, doesn’t really.

By reporting that she had been run off the road by a specific vehicle—a silver Ford F-150 pickup, license plate 8D94925—the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving. That basis of knowledge lends significant support to the tip’s reliability.

There is also reason to think that the 911 caller in this case was telling the truth. Police confirmed the truck’s location near mile marker 69 (roughly 19 highway miles south of the location reported in the 911 call) at 4:00 p.m.(roughly 18 minutes after the 911 call). That timeline of events suggests that the caller reported the incident soon after she was run off the road. That sort of contemporaneous report has long been treated as especially reliable.

Another indicator of veracity is the caller’s use of the 911 emergency system. A 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.

Continue reading →

A recurring question is why criminal defense lawyers are underrepresented in government positions, whether judicial, legislative or executive. The easy answer is that we’re easy targets, having spent our careers as gladiators, defenders of the Constitution and, as the NACDL slogan goes, Liberty’s Last Champions.

Actually, we don’t sound half bad when you put it that way. But then, nobody puts it that way.  This is more the way we’re described:

Not only does it pander to ignorance and prejudice, but it’s awfully effective in smearing a candidate for office.  After all, even if you’re not entirely inclined to hate criminal defense lawyers for their role in the criminal justice system, Continue reading →