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 →

As a follow-up to my earlier post about Eugene Volokh’s post-win motion to sanitize the 9th Circuit’s opinion about his pro bono client, Crystal Cox, having “apparently” engaged in some dubious behavior, a brief post to add the latest amicus curiae submission, this one on behalf of a fellow named Martin Cain.

In attempting to excise the Court’s reference to her underlying extortionate conduct from the opinion (Petition for Rehearing), Cox apparently provoked Mr. Randazza to provide the Court with more definitive evidence as to her conduct, directed at himself and at others. In her opposition, Cox asserts that the MBRR findings presented by Mr. Randazza – as they were at the time – were merely “proposed” and thus should be disregarded. (Cox Opp. to Mot. for Leave to File Amicus Brief) Amicus hereby seeks to present this Court with the MBRR’s final Findings of Fact, Conclusions of Law, and Final Order (“Order”).

Amicus here is the actual victim referred to in the MBRR’s proposed finding of facts and conclusions of law (Randazza amicus Brief, Exhibit. B). While it is true that those were merely “proposed” findings of facts and conclusions of law, Amicus is in possession of the final Order. Continue reading →

For those who care to debate the heady question of whether law is a business or profession, of the merit of non-lawyer, who have neither an ethical duty nor fiduciary relationship, ownership, meet Emanuel Roy and Peter Mayas.  They’re lawyers, but of the sort that follows the business path rather than the profession path for which I often advocate.

From the Sun-Sentinel, via Walter Olson at Overlawyered:

Patrick Coulton’s lawyers ripped him off to the tune of $275,000 and left him to rot in prison.

The bizarre legal soap opera began in March 2008 when Coulton was arrested on federal drug and money-laundering charges for smuggling cocaine and marijuana.

His family hired Roy, who was a lawyer in New York and Florida at the time, and Roy brought his friend, Mayas, a Plantation attorney, on board too. Continue reading →

A recent column in the Harvard Crimson by student Sandra Y.L. Korn raised a firestorm by challenging the foundation of academic freedom:

When an academic community observes research promoting or justifying oppression, it should ensure that this research does not continue.

The concept isn’t novel, the elevation of political correctness over the search for unpleasant truth. I had this weird inkling that it was related to something here long ago, but I couldn’t put my finger on it.  I shrugged it off. At my age, forgetting things is like breathing.

Then an email arrived. Brief and unsigned, the only indication of its sender being its gmail address of “lattice.theory.” Continue reading →

Having followed Kerri Kaley’s struggle to enable herself and her husband to fight charges of dubious merit since the circuit, an old question arose: Would the law that grew like a fungus in the bad, old drug days of forfeiture law that gave rise to such discreditable decisions as Monsanto, be perpetuated now that they were being applied to people who society didn’t inherently despise?

The Supreme Court answered the question in Kaley v. United States, a split decision by Justice Elena Kagan: Hell, yes!

In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the seizure’s legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury’s prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding. Continue reading →

It’s not as if New York Law School Professor Robert Blecker hadn’t staked his claim as the intellectual leader of the Kill ‘Em Now crowd already.  He’d been out there, pounding the pavement to drum up business in advance. So when the review copy of The Death of Punishment, published by Palgrave Macmillan, arrived, I was all ready to rip it to shreds.

It opened as I would have expected of anyone who sought to take ownership of the joys of capital punishment, immediately forcing me to wonder what trauma happened to Blecker in his formative years to stunt his intellectual growth and leave him an emotional cripple.  Maybe it was the simplistic notions instilled in him as a child, eye for an eye, revenge, retribution?

But a lousy thing happened on the way to hating Blecker’s book.  Aside from the inexplicably warped view of capital punishment, there was a grudging respect for him. He was no mental midget, not by a long shot. This was a very smart man. Continue reading →

Anyone who has ever sought to persuade another that their feelings on a subject are irrational knows that it’s a waste of time. Feelings aren’t based on reason; they’re feelings. Ultimately, it always devolves into, “well, that’s how I feel,” and the time spent discussing it is lost forever.

We used to be a society that embraced the “sticks and stones” mantra, which has since fallen into disrepute.  For many, it’s been replaced with the assertion that hurt feelings are every bit as real and painful as broken bones, and for them, this is not an issue worthy of discussion. That’s how they feel.

But the substitution of tangible harms with emotional harms has become a driving force in the call for new crimes outlawing and punishing things that give rise to hurt feelings. Continue reading →

An oft-repeated meme on the interwebz, and certainly one of my favorites, comes from a Peter Steiner cartoon, first published in The New Yorker on July 5, 1993.

Bearing in mind that Steiner recognized, more than 20 years ago, that we rarely have a clue we’re dealing with online, he was prescient.  But just how prescient is made clear by Glenn Greenwald at The Intercept: Continue reading →