My bad. When I argued that the Senate had a constitutional duty to provide “advice and consent” on the president’s Supreme Court nomination, but that there was no enforcement mechanism to compel it to do so, I blew off the notion that the failure to perform this duty could constitute a waiver. And yet, Gregory Diskant, a senior partner at Patterson Belknap and former clerk to Justice Thurgood Marshall, argues in the Washington Post exactly that. If you took the view that the Senate’s failure to act could constitute a waiver, then you, too, could be a senior partner at a major law firm. You would still be wrong, but well paid, and given the opportunity to publish sentences like this: The Constitution glories in its ambiguities, however, and it is possible to read its language to deny the Senate the right to pocket veto the president’s nominations. Glories in its ambiguities? Pretty darned prosaic, but what he’s probably trying to…
Why Waiver Won’t Work
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Random thoughts through April 10, 2016
My Sunday blogposts sometimes veer beyond the law, including occasional consolidated random thoughts collected over the weeks on Twitter and elsewhere LAW SCOTUS imposes some protection against pretrial freezing of a criminal defendant’s untainted assets. Luis v. U.S. SCOTUS confirms the hoops needed to overcome an Indian tribe’s aauthority over reservation land. Nebraska v. Parker. D.C. Cir. addresses discovery of evidence following alleged violation of right to remain silent. D.C. Cir. vacates federal trial judge’s refusal to honor joint motion to exclude deferred prosecution agreement period from Speedy Trial Act calculation. D.C. Cir. affirms mootness-based dismissal of injunction action against prosecution, where prosecution risk is remote. SCOTUS’s April 4 decision on AEDP SCOTUS’s April 4 decision on one person, one vote. Va.- Conditioning a dismissal on community service does not preclude expungment. Brown v. Com. (Va. Sup. Ct.…
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Monetizing OPC Isn’t Brave
I’ve never been a member of the “information wants to be free” club. That’s because I create content (this stuff you’re reading), and as much as I choose not to monetize it by putting advertisements on SJ, though there is the donate button on the sidebar, it pisses me off when someone else decides to take my content, put it on their website and make money off it. I give it for free. You don’t get to steal my content so you can make money. Is that wrong of me? At Boing, Boing, Cory Doctorow writes about a new browser called Brave. Brave is a new experimental browser from Brendan Eich, inventor of Javascript and co-founder of Mozilla. It comes with a built-in ad-blocker that only blocks third party ads, and replaces them with non-tracking ads from its own inventory, whose revenue is then shared with publishers and users, on better terms than most ad networks give. If my understanding is correct, Brave takes OPC (“other…
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D.Md.: Rodriguez was not a new rule of law so def was on notice of the issue through Caballes
Defendant’s search was in 2011, and he raised Rodriguez in his 2255. First, it’s denied because defendant was on notice of the issue because it said it merely applied Caballes. [Also, it was overturning the Eighth Circuit’s de minimus rule … Continue reading →
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The Waiter, The Thiel Fellow
On CBS Sunday Morning, a segment on college, even high school, “whiz kids” who have dropped out to become the new prospectors in the digital goldrush. Part of this segment was an homage to Peter Thiel’s Fellowship, a $100,000 prize awarded 20 of the best and brightest drop outs. How cool is that? The cameras showed the faces of a handful of young whizzies, filled with risk-taking aplomb and ideas for new apps that were pretty much like old apps, and didn’t do much of anything to change the world. But hey, all they want is some VC loot and a chance to sell it to someone with enough money to turn them a profit, so they can do it all again. But the kids they didn’t put on camera were the waiters in the restaurants where the TV producers ate lunch, or picked up a venti fruiticcino. Because they were going to be huge successes too. The problem is that the faces they show, the stories they tell, are of the handful who are treading water, if not quite…
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FL5: Def showed standing in duffle bag in car he was a passenger in
The trial court denied the motion to suppress without a hearing, and the state concedes error. Defendant showed enough standing in at least the search of his own bag in the car to get a hearing on the legality of … Continue reading →
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FL5: Pre-McNeely warrantless blood draw saved by GFE
A pre-McNeely warrantless blood draw was unconstitutional but saved by the good faith exception because it was valid at the time. State v. Liles, 2016 Fla. App. LEXIS 5427 (Fla. 5th DCA April 8, 2016). Arguing over whether “long black … Continue reading →
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Top Ten Rules of Being A Juror
Jurors will often talk to me after a trial. They have tons of questions.After a trial, I often get calls from former jurors who have questions about the process.So, with those questions in mind, here are the top ten tips I have for criminal trial jurors, admittedly from a criminal defense attorney's perspective..10. Bring a jacket or sweater and reading material to court with you on the day you are called in for service.9. Do not worry about bringing notebooks, pens, or pencils. The Court provides those things for you.8. Concentrate on two things: (1) the evidence, and (2) the judge's instructions to you.7. Remember this: You have the right to ask questions. Yes, even during the actual trial. Ask questions of the witnesses in the manner that the judge instructs. Ask as many questions as you like. If an issue is on your mind, ask the question.6. Once all the…
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Innocence odds and ends
Several items related to wrongful convictions and innocence compensation may interest Grits readers:A couple of weeks back, Grits mentioned the Court of Criminal Appeals ordering a new trial after DNA testing failed to inculpate a man named Darryl Adams who was convicted of rape in 1992. The case hadn't received the usual MSM coverage accompanying such events. Now, Jennifer Emily at the Dallas News provides some backstory on it.The Texas Observer recently published an interview with exoneree Anthony Graves, who was also featured in the Dallas News last month for his philanthropic efforts supporting innocence work.The Comptroller turned down compensation for Alfred Brown, whose wrongful conviction spurred the Legislature to eliminate the state's pick-a-pal grand jury system.In a similar vein, Jordan Smith has an update on Fran and Dan Keller's so-far-failed efforts to secure compensation for their false conviction for allegedly molesting preschool students back in…
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996 Days...
....to Governor Balderas.3919 days to Governor Keller.
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Courts Under Assault
A free and independent judiciary is a cornerstone of our constitutional structure. In our system, judges are supposed to remain free of political pressure to the fullest extent possible so that they can interpret and apply our laws without having to fear political reprisals resulting from their decisions. Anybody who has successfully completed a middle school social studies class knows that in this country, the judiciary is supposed to act as a check on the other two branches of government. The notion of a free and independent judiciary is, however, being reduced to little more than a nice sentiment. In reality, the federal judiciary, as well as state judicial systems throughout the country, are increasingly under assault from both the executive and/or legislative branches of government. As a threshold matter, it is important to remember that no judicial system in the United States can be wholly free of politics. Judges are elected to the bench in…
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The many challenge of a fully nuanced understanding the Clintons, crime, punishment and the 1994 Crime Bill
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YES SIR! NICKLAUS WINS SIXTH MASTERS IN 86
Jack Nicklaus was 46 in 1986. He was too old. Nobody wins the Masters at the age of 46. During the week, one of his friends cut out a newspaper article declaring that Nicklaus was too old. He taped the article to the refrigerator in the house Nicklaus had rented for the tournament. Jack was over the hill. Even Nicklaus may have suspected his days of competing were over He had his son Jack on the bag with him for the tournament. By Sunday Nicklaus was 4 behind and not even in the discussion. Seve Ballesteros was in the lead. Bernhard Langer and Greg Norman-the White Shark- were hunting for the Green Jacket. On that magic Sunday five different players had a share of the lead as play unfolded. As he approached Amen Corner, birdies at 9,10,11 had put Nicklaus back in contention. But a bogie at 12 dropped him three back. But there was life in the Golden Bear. Sunday April 13, 1986. The fifteenth at Augusta. The start of the greatest back…
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Is investing in the marijuana industry a prudent choice?
The question in the title of this post is posed by a trio of my students in my OSU Moritz College of Law seminar on marijuana laws and reform as a preview to their coming in-class presentation/discussion. These students have authored this preview blurb to go along with the following...<img src="http://feeds.feedburner.com/~r/MarijuanaLaw/~4/WaKX-1gSumo" height="1" width="1" alt=""/>
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"Don’t Just Get Kids Off the Sex Offender Registry. Abolish It"
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The Sobriety Requirement in a Michigan Driver's License Restoration or Clearance Case
This real "meat and potatoes" of a Michigan driver's license restoration case focuses on whether or not you have really quit drinking. It only makes sense that the state makes sure a person is not at risk for another DUI by making sure the person can prove he or she is not a risk to drink again. Non-drinkers are simply not a threat to drive drunk. It is easy, perhaps to a point of oversimplification, to say that sobriety is a first requirement in a license restoration or clearance appeal. Similarly, it is easy to say that you're sober, but the test, both to win back your license and to remain alcohol-free over the long term, is whether or not you really accept that you cannot ever drink again. In this article, I want to look at the markers of real sobriety and how their presence helps a license appeal filed with the Michigan Secretary of State Administrative Hearing Section (AHS). Every so often, it becomes necessary for me to do an article like this…
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NJ State Trooper Pleads Guilty In DUI Case
DUI cases can involve tragedies, but in the case of a New Jersey State Trooper, a simple fender bender may end up costing him his job. Last October, Sgt. First Class Michael Roadside rear ended a white Audi at the Monmouth Service Area on the Garden State Parkway, resulting in charges of drunk driving, careless driving, and possessing an open container of alcohol. On the scene, he is alleged to have offered the driver of the Audi $1,000 if she wouldn’t report the incident. His uniform shirt was on inside out, and when the driver asked him if he was a police officer, he pulled his shirt to the side to show her his service weapon and a loaded magazine and a beer bottle cap fell out. When the driver ultimately called 911, she told the operator that she was scared and that Roadside was acting erratically. Roadside told police that he was not drunk when they arrived on scene, blaming his condition on a recent surgery instead. When he did consent to testing, his blood…
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Down Ballot Blues: Hillary Clinton Can Better Help Democrats Take Back The Senate
Assuming a Democrat wins the White House but the Senate remains in Republican hands, there will be no political revolution as Bernie Sanders promises and little of the relatively more incremental change that Hillary Clinton proposes. Supreme Court vacancies, including the current one, will likely remain vacant, with Republicans having no incentive to confirm a Democratic nominee -- even after the election. Indeed, it is hard to imagine very many Republicans foolhardy enough to dissent from a rabid GOP base that would strenuously object to any nominee to the left of the late Antonin Scalia.On the other hand, if the Democrats can take back the Senate -- and gain seats in the House -- it is far more likely that a Democratic President can successfully pursue progressive policies. More importantly, in my view, the balance of power on the Supreme Court would shift to the left of…
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Doo unto others . . . .
Courtesy of mslavic on FlickrAppellant Jeffery Walker was on supervised release. His neighbor's dog kept coming into his yard and "depositing" on his lawn. Walker took umbrage. In fact, he took more than umbrage - he took a machete to his neighbor, assaulting and nearly killing him. He was charged in state court with attempted murder, and probation moved to revoke his supervised release. The district court agreed, and imposed a 5 year sentence.On appeal, Walker argued that, because he acted in self defense, the sentence should have been lower than the statutory maximum term.…
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Deferred Prosecution and Non-Prosecution Agreements Used in Corporate Criminal Cases
Historically, federal prosecutors have three ways to handle criminal cases: decline to prosecute, secure a plea agreement, or try the case before a judge or jury. Deferred Prosecutions The Speedy Trial Act of 1974, which is found in 18 U.S.C. § 3161, offers a different method for handling the prosecution of minor offenses. Subsection (h)(2) of the act allows U.S. Attorneys to handle these cases through pretrial diversion agreements known as Deferred Prosecution Agreements (DPAs) and Non-Prosecution Agreements (NPAs). This subsection provides that the 75-day time limit for bringing a criminal case to trial is suspended during “any period of delay during which the prosecution is deferred by the attorney for the Government pursuant to a written agreement with the defendant, with the approval of the court, for the purpose of allowing the defendant to demonstrate good conduct.” Increased Use in Corporate Criminal Cases This…
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