Soon after I began SJ, someone told me that I had a snarky tone. That would have meant more to me if I understood what snarky meant, as the word was foreign to me at the time. It was explained as snide and cynical, less definition than attitude.

I didn’t see my writing as snarky at all.  And the last thing I saw was cynicism, but then, self-assessment is notoriously unreliable, and there was no reason for mine to be any better than anyone else’s. So after giving it some thought, I sought the perspective of others who would tell me the truth.

What I learned was curious: Continue reading →

In a CNN op-ed, Northern District of Iowa Judge Mark W. Bennett (the other Bennett, as he’s called around here) and former AUSA, now lawprof, Mark Osler describe how the experiment failed:

Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law. Through the establishment of mandatory sentences and sentencing guidelines, discretion in sentencing was shifted from judges to prosecutors.

After the changes, prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.

Judge Bennett notes how the change ignored Continue reading →

This will come as no surprise to anyone over the age of 50, but may well be hard to believe for young people: I’m 29.  Yup, 29 years of age.

Well, not 29 if you add up the candles on my cake, or if you ask me what I think of the latest meme or my favorite line from the Princess Bride, mostly because I won’t have a clue, but as far as how I picture myself in my mind, I am definitely 29.

WTF?  Abby Rodman explains.  She found herself in an elevator with a bunch of drunk 25-year-olds. Continue reading →

It came by email yesterday. And then it came again, this time personalized just in case it was ignored the first time.  Human Rights Watch produced a 126 page report about plea bargaining, because it hasn’t been discussed to death enough.  I tried to ignore the press release, but I knew that it wasn’t going to work. I’ve come to despise press releases.

There was no way not to get sucked into this discussion again because people who were clueless, who had never defended a person accused of a crime in federal court and never negotiated a plea (or went to trial in a criminal case) would be all over this like flies on, well, stuff flies just can’t not be on.

So I started to read the report. And it didn’t take long before it devolved Continue reading →

It’s bad enough that two cops fired weapons in Times Square and managed not to have a single bullet strike its target. It’s bad enough that two innocent bystanders were shot. It’s bad enough that they had no justification for the shooting.  But what is intolerable is that someone must pay for these grievous wrongs.

Somewhere on the 7th Floor of 1 Hogan Place, a prosecutor got a brilliant idea. “I know,” he said. “Let’s blame the guy the cops were shooting at!” After all, if he hadn’t been  acting crazy in traffic, none of this would have happened. “Am I right? Am I right?”

The theory isn’t new.  Ike Turner tried it when explaining why he was forced to beat Tina. Continue reading →

Among the many great fictions of the legal system is that juries follow instructions.  In fairness, it can work to either side’s advantage, based on the circumstances.  An inadvertent instruction can serve as the basis for reversal, even though no one on the jury could possibly have had a clue what the judge was talking about.  The very notion that a jury can follow all that legal mumbo jumbo has always been absurd, but lacking an alternative way to tell the jury what the law is, we persist in the fiction.

But every once in a while, a jury returns with a verdict that shows just how ridiculous the whole concept can be, and that happened in Stamford, Connecticut manslaughter trial of Robert Bell: Continue reading →

For no good reason, I neglected to write about a fascinating 4th Circuit opinion yesterday in United States v. Robinson.  which wouldn’t have mattered much had Orin Kerr not written about it first.

The facts in Robinson are relatively ordinary.

On April 14, 2011, the Durham Police Department received a call reporting an altercation in MacDougald Terrace. The caller stated that three African-American males in white t-shirts were chasing an individual who was holding a firearm. Officer Doug Welch drove to the area in his patrol car. Continue reading →

If you’re not @CBSAndrew, you should not be reading this.  Didn’t you see the “personal and confidential” thing in the title? Yeah, you won’t listen to me. Dang. Never mind.

I’m not only appreciative of Andrew Cohen’s articles at The Atlantic, but a huge fan. Cohen is one of the handful of journalists who addresses the ugliness, the nastiness, the wrongfulness, of the criminal justice system with depth and thoughtfulness.  While I may not always agree with him, I appreciate him. I hope that makes sense.

But I have a nit to pick. Continue reading →

When a judge rails against the evils of crime, the reaction ranges from applause to re-election.  When a judge rails against the evils of prosecutorial misconduct, there is a very different reaction.  Via the Post and Courier:

Beatty, elected to the Supreme Court in 2007, told the audience of prosecutors they had “been getting away with too much for too long” and the high court will no longer turn a blind eye to unethical conduct such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence.

He added that “you better follow the rules or we are coming after you and will make an example,” according a summary of his comments. Continue reading →

There is a beauty in old structures. Houses, public buildings, even courtrooms. Especially old courtrooms, perhaps. Whether simple and utilitarian or ornate and majestic, they reflect our history. And yet, as with history itself, they sometimes reflect mistaken ideals.

Judge Richard Kopf, at Hercules and the Umpire, was off to preside over a trial in Sioux City, Iowa, in a courtroom he described as “stunning.”

This week and next, I have the privilege of using  the stunning old but restored federal courtroom in Sioux City, Iowa to try a jury case. It is pictured below: Continue reading →