Category Archives: Law: Criminal Law

Not the Smartest Thing to Wear to Court


A man accused of drug trafficking showed up for court Friday in Fort Lauderdale sporting a jacket that bore a cartoon-style recipe for cooking crack cocaine.

The man’s white jacket looked like a how-to guide for making crack cocaine, with a series of little pictures of a white substance with a spoon, a carton of baking soda and a little pot over a fire. The end product was a "rock," slang for the drug.

via MiamiHerald.com, Man wears ‘crack jacket’ to court.

My question is whether this sort of thing is common only in Broweird, as we so fondly call it, or is this more common? I sort of fear it might be national.

Posted in Florida, Law: Criminal Law, Law: Practice | Leave a comment

The Strangely Affirming ‘Film the Police’

There is something oddly affirming about this rap video ‘Film the Police’. (Warning: cruelty and bad words you probably don’t want your toddler learning.)

I am not usually a big fan of rap; although I’ve heard a few very striking and wonderful rap pieces, on the whole my liking for rap tends to be one notch above ‘take it or leave it': I’ll take it if there’s nothing else on.

Why then do I say a rap video about police brutality is affirming? For one thing, I am cheered that this piece of resistance starts with a judicial trope. The counter-culture assuming the judicial robe is older than I am (and even I just barely recall here come da judge), but it is still cheerful to see it continued, or revived. There’s still some deep resonance about the idea that the rule of law might be something that can be appropriated and turned on the powers that be.

Even more affirming is the central assumption: publicizing state-sponsored violence can end it. And it might be true.

Posted in 99%, Law: Criminal Law, Question Authority | 1 Comment

Damn Lies

Could it really be true that 99% of statistics are made up? Maybe so.

Posted in Law: Criminal Law | Leave a comment

Local Boy Makes, er, Not Good

The Baddest Lawyer in the History of Jersey is also, I’d bet, the most colorful graduate — ever — of Nova Southeastern law school, just up the road in Fort Lauderdale.

Posted in Law: Criminal Law | Leave a comment

L’Affaire DSK Summarized

Despite my trawling the French media, the best short explanation I’ve seen of key aspects of the case is, in all places, a philosopher’s blog. Robert Paul Wolff happens to be visiting Paris, and he offers this great DSK summary.

Key bits:

There are essentially four possibilities. First, things may have gone exactly as the young hotel maid says. Second, the entire thing may have been a complete lie, a frame up, a non-event. Third [this one is attractive to French commentators, who know DSK's reputation], the maid may have come into the room [either intent upon carrying out a sting or not], and DSK, aware of his reputation and fearful that he was being set up by his political enemies, fled precipitously to avoid being found in a potentially compromising situation. And Fourth, sex may have occurred, presumably at DSK’s instigation, but it was sufficiently “consensual” not to constitute attempted rape or sequestration or any of the other things with which he has been charged [this one is being floated by DSK's defense lawyers.]

So, here is where things stand. If the evidence of the keys shows that DSK checked out before the maid used her key to enter the room, or so soon afterward as not to allow time for anything at all to have happened, then clearly the whole thing is a lie, a sting, a put-up job. If the timeline of the keys makes it possible that the accusations are true, but if the electronic evidence shows that the door stood open for, let us say, half an hour, then the maid’s story of DSK shutting her in shortly after she entered the room is false, and possibilities two or three above are suggested. If all of this electronic evidence is compatible with the truth of the accusations, then the question will be whether there any DNA or other physical evidence supporting the accusations. If there is clear evidence of physical contact [not necessarily semen, but possibly that], then either we have an attack or we have “consensual” sex.

That is where things stand until we have more evidence, but I have to say that on the face of it, the story about a sting is pretty implausible.

And, sadly, this:

Incidentally, in all of the French newspaper coverage, much of which now focuses on the superiority of the French over the American judicial system and on the appalling assault on the dignity of DSK constituted by the pictures of him in handcuffs, I was unable to find a single word of sympathy of any sort for the hotel maid. She is a poor, Black, working-class woman, and as far as the sophisticated left wing journalists, academic commentators, and psychoanalysts are concerned, she does not exist.

Posted in Law: Criminal Law | 1 Comment

Wisconsin Court of Appeals Cites My ‘Death of Privacy?’ Paper

In State v. WALLI, 2011 WL 1775995 (Wis.App., May 11, 2011), the Wisconsin Court of Appeals, 2nd District, cites to my The Death of Privacy? article.

The case was a fairly routine-looking DUI, but the Court of Appeal decided to use it as a vehicle to settle a more general question of law:

Because the first step in this analysis requires us to review the trial court’s findings of historical facts and, in this case, those findings are based in part on a video recording of the event, this court, sua sponte, issued an order converting this appeal from a one-judge appeal to a three-judge appeal and requested the attorney general to file a supplemental brief on the appropriate standard of review. With the near ubiquitousness of squad car video cameras, surveillance cameras and traffic cameras, appellate courts will be deciding more and more cases where some of the evidence is preserved on recordings.

(footnotes omitted). Death of Privacy? got cited for the ubiquitousness point, which is fair enough, although not exactly central to the main issue the court was concerned about.

The standard of review for decisions based on recorded evidence is debatable because a reviewing court ought to be as able to review recordings as is the trial court; the same cannot be (or at least, is not) said about testimonial evidence, since the trial court sees the live witness while the reviewing court sees only the ‘cold’ written record. Traditionally Anglo-American legal systems tend to give a great deal of weight to the seeing of live witnesses by triers of fact, whether or not this in fact enhances accuracy; civil law systems, I gather, do not have the same fetish.

States differ on the appropriate standard of review in such cases, but the Wisconsin Court decided that “clearly erroneous” was indeed the test it would apply when a trial court makes an evidential determination based on a combination of testimony and recorded evidence rather then the far less deferential “de novo” standard urged by the appellant. The perhaps more interesting issue of what standard of review would apply if all the evidence were recorded is not decided in this case, at least not explicitly.

Posted in Law: Criminal Law, Law: Privacy | 2 Comments

None Dare Call it Perjury

I admit crim pro is not my strong suit, but why isn’t the conduct described in Islamic Shura Council v. FBI (C.D. Cal. Apr. 27) simple perjury by a government official?

The Government’s in camera submission revealed that the Government initially misled the Court in two material respects. First, the Government’s representations regarding its use of “outside the scope” were inaccurate. The Government initially represented to the Court that the Government provided all information that “include[d] any reference to plaintiffs in any document in any file,” and any information withheld as “outside the scope” of Plaintiffs’ request was “non-responsive.” (Opp’n to Pl.’s Mot. Summ. J. at 3, 11.) Mr. Hardy’s second declaration stated that, in truth, documents “that would otherwise be considered to be responsive to plaintiffs’ request” were excluded from production or redacted as “outside the scope.” (Second Hardy Decl. ¶ 5.) Second, the Government’s representations regarding the number of responsive documents were false. The Government previously represented that it had identified only a limited number of documents responsive to Plaintiffs’ FOIA request. (First Hardy Decl. ¶¶ 19, 31–43, 45–46.) Mr. Hardy’s second declaration acknowledged that the Government had identified a large number of additional responsive documents, but that the Government did not disclose the existence of these other documents. (Second Hardy Decl. ¶ 13.)

The first declaration was, if I am reading it right, under oath. And there were lawyers involved in many stages of this too.

(Case spotted via Volokh. Neither he nor the judge call it perjury.)

Posted in Law: Criminal Law | 2 Comments