The story they tell is that there is no way to stop revenge porn except by the enactment of new laws that reflect a cavalier disregard for the First Amendment. That it also serves to elevate their profile in the process, well, can’t be helped.  Except, it’s nonsense, as shown by the $385,000 judgment obtained by Marc Randazza against revenge porn site You Got Posted, Eric Chanson and Kevin Bollaert.

The woman sued as “Jane Doe,” and the federal court for the Southern District of Ohio awarded her a judgment of $385,000 against Kevin Bollaert and Eric Chanson on March 18, 2014. The Court awarded the plaintiff $150,000 each on two child pornography claims, and $10,000 on her right of publicity claim. Additionally, the Court awarded the plaintiff $75,000 in punitive damages based on Bollaert and Chanson’s conduct. In total, the Court awarded $385,000 against Kevin Bollaert and Eric Chanson. Additionally, the Court prohibited Kevin Bollaert and Eric Chanson from ever again publishing her images.

They can’t be sued? There is no effective civil remedy?  There has to be a new criminal law, and it’s such a critical need that collateral infringement of free speech is just an unfortunate, but necessary, consequence?  Well, no. Not at all. Continue reading →

While this may appear to be beating a dead horse, what happened to Antwuan Ball was so outrageous, so contrary to every notion of due process, that it’s shocking. And yet, the D.C, Circuit Court of Appeals upheld it, without breaking a sweat.

To recap, the defendants were charged in a massive crack conspiracy, plus violent crimes. They went to trial, which took 8 months. The jury deliberated for more than two months before returning a verdict.  They acquitted on all counts, except a single distribution count of 600 grams of crack.  Great result? Not so fast.

At sentencing, the district court nevertheless found that all three defendants had engaged in the charged conspiracy and, based largely on that finding, sentenced them to terms of imprisonment ranging from fifteen to nearly nineteen years. Continue reading →

In a very lengthy law review article published in the Alabama Law Review, Northern District of Iowa Judge Mark W. Bennett (the “other” Bennett) and American University Lawprof Ira Robbins have done an empirical survey of the impact of the defendant’s statement to the court on federal sentencing.  It’s a disturbing study.

Allocution — the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing — is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions — and many others — are answered directly in this first-ever study of judges’ views and practices regarding allocution.

Putting aside the methodologies, the backend of the article contains Continue reading →

Many videos have allowed distant eyes to learn that a police officer killed a person for no good reason, ending our slavery to conflicting statements about what happened and facile rationalizations of how it couldn’t be helped.  Before then, we could pick a side and believe or not, but we could never know.

The increasing availability of video has fundamentally altered the equation of mindlessly siding with probability by conclusively proving that police are sometimes wrong, and when they are, they tend to lie about it or manufacture absurd justifications to excuse their wrongs.  And people are increasingly unwilling to believe them no matter what our lying eyes tell us.

Then comes a video like the dash cam that captured the shooting of 70-year-old Bobby Canipe by York County, South Carolina, Deputy Terrance Knox. Continue reading →

The New York Times editorial chalks it all up to money.

The current Congress is the place where virtually all legislation, however urgent or reasonable, goes to die. Yet out of this stew of partisan mistrust and dysfunction there may come one promising and unexpected achievement: the first major reforms to America’s broken criminal justice system in a generation.

With two bills pending in Congress with bi-partisan support, the Smarter Sentencing Act, to cut some mandatory minimums for non-violent crimes, and the Recidivism Reduction and Public Safety Act, to promote rehabilitation with jail-time credit, we are poised for reform of some sort, and the Times raises the question of “why now?”

Reforms like these were unthinkable even a few years ago, when the Republicans’ longtime tough-on-crime dogma — echoed by Democrats who fearfully fell into line — drove irrational sentencing laws. Why have things changed so quickly? In a word, money — or the lack of it. Continue reading →

When Elie Mystal first told me that Breaking Media, the corporate overlord of Above the Law, was going to try to throw a conference about blogging, I wondered whether he was trying to ask me to give a presentation or sit on a panel, perhaps. Nope. They wanted nothing to do with me, though David Lat later offered me a 15% discount off the price of admission.

Painful though it was, I passed on Lat’s gracious offer.  And then Marc Randazza emailed me, that he was coming to New York to be on a First Amendment panel at the conference, and would I meet him for lunch.  How could I say no to my buddy, Marco?  When the conference rolled around, I asked Marc where we would go to lunch, and he replied, “The Yale Club.”

I know. Randazza at the Yale Club? I can’t even type those words without chuckling, but that’s where the conference was being held, and Breaking Media was paying for lunch there anyway. Continue reading →

The New York Times calls him a minnow, swimming with the sharks of Dewey LeBoeuf.  When the indictments were announced, everyone knew who the big machers at Dewey were, but Zachary Warren?  At the time, he was a fresh-faced kid out of Stanford working as a “client relations manager,” a non-lawyer paid to do what the big fish at biglaw told him to do. Big deal.

But since then, Zachary Warren went to Georgetown Law School, made law review, clerked for District Court Judge J. Frederick Motz in Maryland, and then a clerkship on the 6th Circuit for Judge Julia Smith Gibbons, and was admitted to the California and D.C. bar.  He has a job offer from Williams & Connolly waiting for him. Not too shabby.  Still, he got burned by the basics.

Mr. Warren may have been naïve, but he thought he was being questioned as part of a civil Securities and Exchange Commission investigation. He thought he might be a witness, and thus did not need a lawyer. Only too late did it dawn on him that he might be a target of a criminal investigation. Continue reading →

A discussion has “erupted” over the word “disruption.” At 3 Geeks and A Law Blog, Ryan McLeod writes of how he challenged “the myth of disruption.”

In a recent session at LegalTech NY, I spoke about what I consider to be the great myth of disruptive technology; that we need to be on the  hunt for the next big thing to set our firms apart and leave our  competition in the dust. This is a fool’s errand. As I said in my talk,  there is no technology that you can buy, build, or even imagine that you can simply drop into your existing workflow and reasonably expect it to disrupt anything other than your existing workflow.

At the Puddle, Sam Glover lays some hate on the daily emails announcing the newest cool start-up that will “disrupt” everything, conjuring up images of O.J. Simpson’s low speed Bronco chase: Continue reading →

Much as we can boil down what lawyers do to the core obligation to represent their clients, we can similarly boil down what lawprofs do to teach their students. This, of course, is simplistic and naïve, to ask most lawprofs, who will explain at very great length (and in language that makes people not want to talk to them at cocktail parties) their duty to engage in scholarship and promote the development of liberal arts and theoretical jurisprudence, but that’s just because they prefer doing such loftier things to teaching. Who wouldn’t?

The duty of a lawyer doesn’t change based upon the lawyer’s characteristics, though it can well be argued that societal bias affects any individual lawyer’s effectiveness. Race and gender, for example, are often hurdles to be overcome. How many female lawyers have experienced the pleasure of having a judge call them “little lady” when explaining why they’re wrong?

While we can complain about the treatment, Continue reading →

Fear.  The title is calculated to cause fear. The numbers are calculated to cause fear. And worst of all, the obligatory anecdotes are calculated to cause fear. And loathing. And anger. All of which give rise to the possibility that a new moral panic is in the making, that 186,000 felons are on the loose and no one can be bothered to stop them.

What’s surprising in that this isn’t being spread by an association of prosecutors, a conservative political action committee or wild-eyed moms scared to death for their children.  This comes from Brad Heath at USA Today, who has long been one of the most thoughtful voices in the mainstream media on criminal justice issues.

In the opening part of the series, a sex offender from Philly takes a bus to Miami, and…well, you’ll see: Continue reading →