When the Supreme Court considered whether to grant cert in Susan B. Anthony List v. Driehaus, the Cato Institute brief nailed the free speech issue, from the critical question of how one determines “fact” in a political context, as well as the inherent chilling effect of criminalizing speech if one guessed wrong.  It was never a question of adoring political lies, but the price to be paid for robust political speech.

Now that cert has been granted, Cato’s Ilya Shapiro has filed its amicus curiae brief on the merits, and it may be the best amicus brief ever filed.  To wet your whistle, here’s the opening:

“I am not a crook.” Continue reading →

One of my complaints about journalists is that no matter how well they write, they aren’t inherently endowed with expertise on the subject of their reporting. The same goes for lawyers, and particularly judges, who sometimes confuse the majesty of their robes for subject matter expertise.

It’s not that we can’t become reasonably well-versed in a very narrow subject with some effort, but that we should never confuse ourselves with real experts. The Supreme Court heard argument in Hall v. Florida, the follow-up case to Atkins v. Virginia which held it unconstitutional to execute a mentally retarded person.

Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Continue reading →

While most altlaw businesses try to dodge and weave around the fact that they’re committing the crime of Unauthorized Practice of Law, one not only admits the obvious, but is proud of it. Via Carolyn Elefant at My Shingle:

Tandem is structured differently from traditional law firms as well.  D.C. Ethics Rule 5.4(b)  allows for non-lawyer partners, provided that they are also firm employees (as opposed to passive investors) and provide services that “assist the organization in providing legal services.” Capitalizing on this rule, one of Tandem’s co-founders, Michael McDevitt is non-lawyer and former CEO of a successful weight-loss company while the other co-founder, Randy Price brings six years experience as a big law associate. The remaining firm members are comprised of a mix of big firm expatriates and management types, including two with deep roots in e-discovery.

As much as my view toward the ownership of law firms by non-lawyers is negative, one of the key ingredients is that it is also unlawful.  Tandem Legal Group is a law firm. It’s half-owned by a non-lawyer, who brings his experience in running a weight-loss company to the firm, and it comports with the District of Columbia’s ethical requirements. Continue reading →

The side of a NYPD police cruiser bears the letters CPR, for Courtesy, Professionalism, Respect.  It’s aspirational at best, and a cynical marketing ploy at worst. In any event, it is not something to point out when an interaction with police doesn’t go as well as one would hope.

But Mayor Bill de Blasio has decided that his new (and Giuliani’s old) police commissioner should commence a new initiative to make New York’s Finest more user-friendly. Via Newsday:

The NYPD’s encounters with the public will soon begin with a polite introduction and end “on a positive note” under a new “Seven Steps to Positive Community Interactions” curriculum announced Thursday by Mayor Bill de Blasio and Commissioner William J. Bratton. Continue reading →

Willie King took the full ride after recording the Indianapolis police arresting a guy.  From the Indiana Lawyer (via a twit by Radley Balko):

Indianapolis resident Willie King who was arrested in February, 2011 after he used his cellphone to videotape police officers arresting another man. King was charged with resisting arrest, disorderly conduct and public intoxication.

He was acquitted after a bench trial, but didn’t stop there.

Following a bench trial that found him not guilty, King filed a federal civil rights case against the city of Indianapolis and the police officers involved in the incident. The lawsuit, Willie E. King v. The City of Indianapolis, Jonathan M. Lawlis, Robert K. McCauley, Brad Alford, Michael B. Wright and David Miller, 1:11-cv-01727, was filed in U.S. District Court for the Southern District of Indiana, Indianapolis Division. Continue reading →

I twit. When Twitter first came on the scene, I was certain I wouldn’t. I was wrong. Before going any further, I call what I do on Twitter a “twit.” I’ve called it that since the beginning, because the place is called twitter. This makes some people furious, because, they tell me, it’s a “tweet.” Is it called “Tweeter”? You can call it whatever you like. I will call it what I like. Get over it.

Over the years since I first wrongly decided Twitter was worthless, I’ve written about it numerous times, as it plays a role in digital life whether I like it or not. It is a poor medium for many purposes: arguments on Twitter are terrible and a waste of time, as it’s impossible to engage in any depth of thought within the constraint of 140 characters.

Serial twitterers are annoying.  Any jerk can @me and expect me to twit with them, as if I’m obliged to engage with anyone with a computer keyboard. Continue reading →

The pressures to select a jury, to move a case to trial, have become somewhat overwhelming in New York, following the exposes of long, inexplicable delays.  The Office of Court Administration has “standards and practices,” which are used to smack judges whose numbers aren’t where the newspapers think they should be. For some judges, the smack is well deserved.

For others, particularly those who have stood up to power by ruling against the local political structure and pissing off a lot of people, standards and practices is a sword hanging over their head, an excuse to sacrifice them on the altar of regularity.

Queens Supreme Court Judge Joel Blumenfeld stood firm when he ruled against the Queens District Attorney’s practice of eliciting confessions from defendants after arrest but before they got to see their lawyer.  This put a target on his back. Continue reading →

While I’m a big fan of a few of the folks writing over at Above the Law, like Elie Mystal, Mark Herrmann, Keith Lee, Tamara Tabo, and even Staci Zaretsky, when she isn’t obsessed with lady parts, the relatively new third-string assistant editor in charge, Joe Patrice, isn’t a favorite of mine.

It’s not that Patrice, of whom I knew nothing, did anything to me. It started when he was given charge of Non-Sequitors, my favorite daily feature at ATL under Elie as it highlighted funny or interesting posts in the blawgosphere that I never would have seen otherwise. But Elie used to search out those posts, find the good stuff, and then offer it with a heaping helping of Elie snark.

Patrice handled it differently. You see, blawgers get emails daily from people who want us to see and, in their dreams, promote their posts. Continue reading →

A conversation that happens fairly regularly with defendants early in the representation describes the options available.  While the relative merit of one over another depends on the case and the risk tolerance of the individual, the options generally remain the same: Plead guilty, cooperate or go to trial.  As part of the discussion, I tell my clients that there is no option where he can say, “sorry, it was all a big mistake, so how about we just call it even and everybody go home?”

Maybe I’m wrong.  From Gideon at A Public Defender:

Today, the United States Supreme Court will meet to decide whether to hear the case of Esteban Martinez. Martinez is in an unusual position, however. He isn’t convicted of anything. In fact, he was acquitted of an assault. But the State of Illinois wants to get a second crack at him. They want to try him again. Because the first time around, they did absolutely nothing. Continue reading →

There has been a good deal of moaning over the demise of the 4th Amendment after the Supreme Court’s opinion in Fernandez v. California, where Walter Fernandez’s refusal to allow police to enter his apartment was forgotten after the cops took him away and later returned to obtain the consent of his girlfriend.

Was the rule of Georgia v. Randolph dead? Did “no” no longer mean no if the police shuffled the naysayer from the premises, leaving behind a more consenting occupant?  Not even if there was ample opportunity to get a warrant, the tedium of the effort notwithstanding?

Fernandez isn’t the death of the 4th Amendment, largely because it’s hard to kill something that’s already moribund. Continue reading →