There are many “stakeholders” in the criminal justice system, from criminal defense lawyers to the innocent who spent 25 years in prison awaiting the day someone would realize they didn’t belong there.  To the outside world, we look pretty much alike, we’re the outliers who care about the accused, the criminals and wrongfully convicted alike, and their constitutional rights.

You can tell which team we’re on because we use phrases like “constitutional rights” instead of technicalities.  So it’s fair to assume that when something big happens, we all take the same position, the same view of it, whether for better or worse.  Not always. Continue reading →

In 2010, the New York Court of Appeals held that as long as the police were justified in shooting the bad guy, they could shoot anybody else in the area as well. No, it wasn’t that they could do it for fun and profit, but the usual litany of excuses, accidents happen and, of course, they have to make “split-second decisions.”

In Johnson v. City of New York, a divided court upheld the “professional judgment rule”:

The professional judgment rule insulates a municipality from liability for its employees’ performance of their duties “`where the . . . conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions'” Continue reading →

Prelude: I’m reluctant to link to Jay O’Keeffe’s post.  Not because I don’t like the post. I do. Very much so, in fact. But it’s on the standard LexBlog platform, filled with marketing garbage (like his Avvo rating) that makes me cringe. 

It suggests that Jay’s purpose in writing is primarily to market himself and his firm, and it’s not my purpose to be complicit in his marketing, and that Jay lacks faith in his writing to be sufficiently worthwhile to cause any reader to seek him out.  Not that there is any reason for Jay to heed my advice rather than, say, Kevin O’Keefe’s, but I hope he does.  His post is excellent, funny, thoughtful and interesting, and it would be a waste for such a good post to be ignored because of the taint of banal self-promotion.  He should have more faith in himself. Continue reading →

Following the Texas Tornado’s spectacular win before the Texas Court of Criminal Appeals, Mark Bennett started receiving comments to his posts from folks who were convicted under a law that now wasn’t.  There were people sitting in prison for having violated Texas Penal Code Sec­tion 33.021(b), the online solicitation of a minor statute, and people who had completed their sentence yet remained under its thumb.

And Mark Bennett, hero of the new digital Alamo, made their nightmare come to an end. At least, that’s what they wanted to hear.  Even people from other states with other statutes wondered whether this ruling might save them. There would be prayers aplenty by teary-eyed mothers, hoping the magic would rub off and somehow touch their loved ones. Continue reading →

Picture a guy walking down the street. Every time this guy happens to spy a police officer, he screams out, “Cops are liars! Cops are scum. I hate cops!”  One might well question his sanity, as it’s rarely a good idea to go out of your way to antagonize a police officer.

But if that’s what the guy wants to do, it’s his right.  The First Amendment says he can express his views about cops whenever he wants, right?  Well, maybe.  Via the Associated Press:

A New Hampshire man told the state’s highest court Thursday that denying him a vanity license plate that reads “COPSLIE” violates his political free speech rights. Continue reading →

From the great north of the profession, Slaw, the legal magazine of Canada, invokes the truism, if at first you don’t succeed, try, try again.  Being an admirer of tenacity, though not necessarily persistence, it’s hard to challenge the old adage.  And yet I will.

The argument opens in a curious way:

“I know lawyers who are very innovative and lawyers with very traditional practices. The latter seem to make much more money,” says Noel Semple, a self-described “lapsed lawyer and aspiring professor.”

And there, in a nutshell, appear two of the biggest impediments to innovation in the legal field: Continue reading →

Ever wonder how to avoid being arrested?  Some would suggest that the answer is to not do anything wrong, but that’s an iffy proposition at best.  At Atlantic Cities, Mike Riggs relays the advice of former “FBI field agent, a SWAT sniper, an instructor at the FBI academy, and a Miami police officer who set Florida records for felony arrests” Dale Carson.

This is where things get, ahem, sticky:

Dale Carson is a defense attorney in Jacksonville, Florida, as well as an alumnus of the Miami-Dade Police Department and the FBI. So he knows a thing or two about how cops determine who to hassle, and what all of us can do to not be one of those people. Continue reading →

In a remarkably brief (six pages!) summary reversal that didn’t draw a lot of attention, the Supreme Court swiftly disposed of a 9th Circuit ruling in Stanton v. Sims.  Apparently, it doesn’t take the Court long to come up with very cool trick for circumventing the Fourth Amendment when they set their per curiam minds to it.

The situation arose in a “neighborhood, known for ‘violence associated with the area gangs.'” as situations often do.  Officer Mike Stanton got a radio run of a disturbance of a man with a bat. Upon arrival, he saw three youths, none of whom had a bat. A perfect match. Continue reading →

My introduction to what was done to David Eckert came from a twit by Tim Cushing at Techdirt.  As I read the laundry list of things done to this poor man, which in the original story was borne of cops claiming he clenched his buttocks, I clenched my fists.

I was repulsed.  My position on places the government cannot go has long been clear, My views on the physicians who are complicit in violating the bodies of human beings at the behest of the police are clear.  That judges, cops, docs see nothing wrong with using the government’s force to rape human beings is beyond my comprehension. Continue reading →

Judge Shira Scheindlin is a soft-spoken, very deliberate judge, hardly the sort who would yell at counsel or say something to skewer a lawyer in front of a client to embarrass. It’s not that she doesn’t make pointed comments, but she does so softly and with surgical precision.  But she now makes clear that she’s a tough woman underneath, and she won’t be hung out to dry without a fight.

Yesterday, Burt Neuborne, the director of NYU’s Brennan Center, filed papers seeking reconsideration of the “precipitous” order removing Judge Scheindlin from Floyd and Ligon, the stop and frisk cases,  The papers are here. Continue reading →