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But the Feds Do It That Way!

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Stephen N. Subrin & Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (2016). Lumen N. Mulligan Although state courts handle roughly ninety-five percent of all civil cases, federal procedural law dominates reform initiatives, academic discussions, and legislative attention. In line with this federal focus, there continues to be a push for state court systems to conform their civil procedural rules to the most recent amended version of the Federal Rules of Civil Procedure. In their new article, Stephen Subrin and Thomas Main reject this unreflective state emulation of federal procedure. Subrin and Main begin by demonstrating that the original promise that the Federal Rules would lead to universal uniformity has not been met. They track this lack of uniformity across four dimensions. Continue reading "But the Feds Do It That Way!"

D.Minn.: Complete failure of showing nexus fails PC and GFE

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The affidavit for the search warrant completely failed to show nexus to defendant’s house and drugs. Complete lack of nexus does not support the good faith exception either. United States v. Rios-Uscanga, 2017 U.S. Dist. LEXIS 68991 (D.Minn. March 13, … Continue reading →

Morning Radio: ObumpCare/TraumaCare

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Monday.On point.On the move.Healthcare by emergency room visit has always been the medical plan for America's poor.It will continue to be.Obamacare didn't change that, Trumpcare won't change that, Obumpcare won't change that.Or, maybe we should call it TraumaCare.  Traumacare is a mixture of Trump and Obama.Obumpcare/Traumacare will be the monster that will come out of all this: A horrible mixture of both plans.  A plan to pacify the insurance companies.The American public will come to the following conclusion: Go all out private or go all out single-payer.Unless something else come along (such as a mistake in North Korea), healthcare will be the battle line in the next two elections.The American public will finally ask what Sinatra asked a long time ago: All or Nothing at All?

At Duke, The Divine and The Sublime (Update)

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War broke out at Duke Divinity School, Rod Dreher wrote of a Catholic professor, Paul Griffiths, who took umbrage at being informed that he was required to take “racial sensitivity training,” for which he claimed that he was being illiberally and anti-intellectually attacked and punished. Griffiths wrote an excoriating reply, saying something to the effect that the program was intellectually vapid and beneath the level of discourse an elite theological school should be having. Dreher, noting in his initial post that he had only one side of the story, called this a travesty if true. In a followup, he posts a missive from another professor at DDS, Valerie Cooper, who proudly wears the title SJW: She poses a two important questions: Who owns the church? Will its prejudices be called out or coddled? Obviously, the second question is language-loaded, since the answer to the first question should be obvious too. The church is “owned” by its members.…

Short Take: Magic Cop Powers (Or Lab Tests Are For Losers)

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Cobb County, Georgia, Police Officer T.T. Carroll isn’t just a special cop. He’s an expert. It’s not just him saying so, but he’s got a piece of paper from the International Association of Police Chief’s that says so. Pretty darn cool, right? And 160 hours is a lot of hours. Maybe not 10,000 hours, but still. What that course means, teaches, does, isn’t at all clear, but if you happen to be a cop on the road, and you say someone is on drugs, then you must know what you’re talking about, because you’re an expert. Officer Carroll: “Watch your wrists for me, I don’t want to pinch you.”Katelyn Ebner: “I’m going to jail for marijuana?”Officer Carroll: “No, ma’am — not possession, unless I find any in your car. I believe you’re impaired by the marijuana you’ve smoked.”Katelyn Ebner: “Okay, so when I do a drug test, I’ll be free to go,…

W.D.Mo.: Damaged and inoperable vehicle that ran into a building was “readily mobile” for automobile exception

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Defendant’s car was still “readily mobile” for automobile exception purposes where it had been driven though the front of a building, was wrecked and had a flat and broken windshield. United States v. Scott, 2017 U.S. Dist. LEXIS 66514 (W.D. … Continue reading →

MA: SW required to access def’s text messages under SCA and state const.

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The state needed a search warrant to access defendant’s text messages under the SCA and state constitution. Commonwealth v. Fulgiam, 2017 Mass. LEXIS 338 (May 5, 2017). (Massachusetts has already held that CSLI is protected under the state constitution.) “We … Continue reading →

Antonio Canova y Venezuela

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http://elcomercio.pe/opinion/colaboradores/otro-golpe-estado-maduro-antonio-canova-noticia-1989905?ref=portada_home El señor Antonio Canova profesor de Derecho en la Universidad Andrés Bello de Venezuela, después de los dicterios acostumbrados por profesionales e intelectuales cuando hablar y criticar al Gobierno  de la República Bolivariana de Venezuela se trata, precisa que se han violado los siguientes artículos de la Constitución venezolana: 62º, 63º, 71º, 347º y 348º, como quiera que también soy abogado, los comentaré no sin antes compartir su texto con todos ustedes. Capítulo IV De los Derechos Políticos y del Referendo Popular Sección Primera: de los Derechos Políticos Artículo 62. ° Todos los ciudadanos y ciudadanas tienen el derecho de participar libremente en los asuntos públicos, directamente o por medio de sus…

New sentencing ordered where officer gave false testimony at trial

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In this appeal the court of appeals reversed a federal court’s order denying the defendant’s motion to vacate his sentence pursuant to 28 U.S.C. 2255.  In Phillips v U.S., the defendant had been charged with numerous drug related offenses and with being a felon in possession of ammunition. A jury convicted him on one count of conspiracy to distribute less than five grams of crack cocaine, one count of crack cocaine distribution, one count of cocaine possession, and two counts of possession of ammunition after a prior felony conviction. Following the filing of the defendant’s 2255 and while it was pending, the government discovered that Agent Michael Ghent an officer with the West Palm Beach Police Department had lied at trial, during the investigation and that he had been under investigation by his own police department for alleged criminal activities. Other investigations showed he had engaged in a sexual relationship with his CI, used illegal…

DIVORCE: Can I start dating while my case is pending? Do I have to be celibate?

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It has been said that the wheels of justice turn slowly. Never more true than for people who are anxiously waiting to be divorced.   Many people going through a divorce just can’t get the process behind them fast-enough. They want to start dating again, and they don’t want to be celibate while they wait. Recently, the New Hampshire Supreme Court addressed the issue of adultery during the marriage and that which later occurred in a new relationship after the petition for divorce had been filed. For many, that case provided no comfort. In Ross v. Ross, 169 N.H. 299 (2016), the Court was confronted with a situation (not all that uncommon) where almost 1l months after the petition for divorce was filed the husband began a sexual relationship with his new girlfriend. The tale is particularly intriguing since the husband separated from his wife immediately when he discovered she was having an affair. Wife, days later, filed a petition for divorce alleging fault…

Binder et al. on Capital Punishment of Unintentional Felony Murder

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Guyora Binder, Robert Weisberg and Brenner M. Fissell (University at Buffalo Law School, Stanford Law School and Georgetown Law) have posted Capital Punishment of Unintentional Felony Murder (92 Notre Dame L. Rev. 1141 (2017)) on SSRN. Here is the abstract:...

What is the Punishment for Resisting Arrest in MA?

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Unfortunately, the process of being arrested isn’t always as straightforward as it appears in the movies. In many cases, individuals aren’t even aware they are under arrest. For this reason, multiple defenses exist if you’ve been charged with resisting arrest. Read on for more information about this misdemeanor offense, and what penalties you may be facing if you’ve been charged. In MA, resisting arrest is a crime, but it is rarely the only charge a person faces. In order for a person to be charged with resisting arrest, law enforcement must have had probable cause that another crime was being committed. In certain situations, however, a person who was not committing a crime can be charged with resisting arrest. This is common in domestic disputes, when a family member attempts to prevent law enforcement from making an arrest. When this happens, the individual will likely be charged with an additional crime, such as disorderly conduct. The following is…

"The Marijuana Industry Is Getting Super-Sized"

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The title of this post is the headline of this notable new Forbes article. Here are excerpts: Retail sales for legal marijuana are growing so big and so fast that the industry is having to super size their operations. Growing and producing marijuana products is now happening on an industrial...<img src="http://feeds.feedburner.com/~r/MarijuanaLaw/~4/m-u7evHT87Q" height="1" width="1" alt=""/>

Is There Mandatory Jail Time for Drug Charges in Utah?

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Thousands of people are arrested for drug crimes every year in Utah. Regardless of whether a drug offense is classified as a felony or misdemeanor, the penalties can be severe – particularly if the offense involves manufacturing, selling, trafficking, or otherwise distributing controlled substances. If a family member has been arrested on drug possession charges, possession of drug paraphernalia, or other criminal charges involving narcotics, you should contact a Salt Lake City criminal lawyer immediately. As this article explains, there are some situations where a drug-related conviction can lead to mandatory jail time. Utah Controlled Substance Laws Drug charge sentencing can be rather harsh in Utah, particularly when the defendant has a history of prior offenses. However, effective legal representation by a Salt Lake City drug crime lawyer increases the odds that the defendant will be able to avoid jail time and receive more lenient penalties, such as probation and…

A few (too-quick) sentencing notes on Prez Trump's new slate of judicial nominees ... and seeking more


Ladies and Gentleman, we have a double header!

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When the Sixth Circuit granted en banc rehearing to In Re: Ohio Execution Protocol, 17-3076, it scheduled argument in the very same order: June 14, 2017.Now, there's our double-header, on October 11, 2017: Turner v. United States, 15-6060, the right to counsel pre-indictment case, in the morning, and United States v. Gibson, 15-6122, the "how much drugs for the puny co-defendant" case in the afternoon.All three of these cases were granted en banc rehearing in 2017.Sitting in a corner somewhere, singing "The Cheese Stands Alone," is United States v. Stitt, No. 14-6158, concerning whether Tennessee aggravated burglary is a violent felony. It was granted en banc rehearing on April 27, 2016. Mathis v. United States, 136 S. Ct. 2243 (2016), effectively reset the briefing schedule. That schedule ended in early September 2016. There has been a trickle of 28(j) letters since, with the Fourth Circuit's opinion in United States v. White, 836 F.3d 437…

Georgia Court Denies Ineffective Assistance of Counsel Claim for Failure to Object to Admission of Prior DUI

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Under Georgia law, evidence of prior DUIs is generally admissible in a DUI proceeding when a criminal defendant has refused to take a state-administered alcohol test, if the prior DUI will be used to show knowledge, plan, or absence of a mistake. Although such evidence is generally admissible, it can sometimes be excluded if a defendant can show that the prejudicial impact of such evidence outweighs any helpful value it may provide to the jury. In a recent case before the Georgia Court of Appeals, one defendant argued that his prior DUI should have been excluded and that, as a result, his counsel’s failure to object to the introduction of such evidence was ineffective assistance of counsel. In this recent case, M.G. was arrested on suspicion of a DUI after he ran into a telephone pole while driving home. He called his brother-in-law at the time of the accident, who called his insurance company to summon a tow truck. When the tow truck driver arrived and saw the…

The Released Sex Offender, Community Supervision and the Ban on Computers

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This post examines an opinion from the Supreme Court of New Jersey: J.I. v. New Jersey State Parole Board, 2017 WL 1057462 (2017). The court begins by explaining thatthe Internet plays an essential role in the daily lives of most people—in how they communicate, access news, purchase goods, seek employment, perform their jobs, enjoy entertainment, and function in countless other ways.Sex offenders on community supervision for life (CSL) may be subject to restrictive Internet conditions at the discretion of the New Jersey State Parole Board (the Parole Board), provided the conditions promote public safety and/or the rehabilitation of the offender. In this case, the first issue is whether a total Internet ban imposed on a CSL offender was unnecessarily overbroad and oppressive and whether it served any rational penological purpose. The second issue is whether the Parole Board improperly denied J.I. a hearing to challenge the Internet restrictions that he claims were…

Recent Case Win–.202 BAC DWI-Not Guilty

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By Bo Kalabus www.rosenthalwadas.com; b.kalabus@rosenthalwadas.com 24-hour Jail Release: 214-402-4364 Client was clocked going down the highway at 105 MPH.  Following field sobriety tests, my client was arrested for DWI. A blood sample was obtained and the results alleged that my client’s blood alcohol content (BAC) was .202. There were serious questions regarding the validity and reliability of the blood test.  In a trial before the court, my client was found Not Guilty. As you can imagine, my client was relieved and very pleased with the result.   The post Recent Case Win–.202 BAC DWI-Not Guilty appeared first on Collin County Criminal Lawyers.

Underincarceration and the Boston Murders

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Two well-known physicians were brutally murdered in Boston Friday night.  The killer should not have been on the streets.  He had a record, and a felony conviction on  -- ready now?  --  September 30, 2016.  That would be a little more than seven months ago. Nor was that his first serious crime.  Still, in the land of second chances, and what with our scandalously racist criminal justice system, we need to emphasize redemption, right? See, e.g., this self-righteous piece in the Atlantic, published, in a masterpiece of bad timing, 48 hours before the Boston murders: https://www.theatlantic.com/national/archive/2017/05/criminal-justice-across-america-reporting-project/524985/The notion were hear all around is that dumbed-down sentencing is our mission in order to become a better people.  What it's actually going to do is make us a deader people. The prison population has been falling recently and, my goodness, we are now in the third…
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