August 17, 2014



just in case there’s anyone in Ferguson who’s following info on tumblr as well

sadly, with the way the police are out, marching, and ready for the curfew (with dogs), there are some people that may need this

"We are prepping for a night if jail support. Call 314 862 2249 if you or friend arrested."

LTMC: Lawyers who did more with their law degree than figure out how to increase their billable hours.

(via priceofliberty)

August 10, 2014
Tony Stewart’s Dilemma, Or How Prosecutors Build A Case

I’m not a fan of NASCAR or racing generally.  But I did recently find out that driver Tony Stewart killed another driver named Kevin Ward after the latter got out of his car and walked onto the track during a sprint car race.  It appears that Stewart hit Ward’s car, causing it to spin out and become inoperable.  Ward then physically left his car and walked out on to the track, appearing to be waiting for Stewart’s car to come back around, at which point, Stewart hit Ward, killing him.

When a prosecutor is trying to determine whether there’s probable cause to charge someone with a crime, they generally need two things: an actus reus (evil act) and a mens rea (evil mind).  In this case, we have a clear actus reus: a violent, harmful contact was made with Kevin Ward’s body, causing his death.  The question is whether there’s enough evidence of a culpable mens rea to arrest Tony Stewart for criminal homicide.

Here are some of the eyewitness accounts, aggregated by Deadspin at the link above:

Rich Willis, who was at the track, said he didn’t see exactly what happened but his sister down in Turn 1 did. He saw Stewart and Kevin Ward get into the wreck.

"People (who could see it better) said the guy got out of his car and was gesturing angrily at Tony Stewart when Tony Stewart came by during the next lap under yellow,” Willis said in a phone interview. “He approached him and evidently when he was driving by the guy standing on the track gesturing at him, he gunned his engine.

"What happened was the back end kicked out and clipped the guy and the guy flew across the track."


Tyler Graves, a sprint-car racer and friend of Ward’s, told Sporting News in a phone interview that he was sitting in the Turn 1 grandstands and saw everything that happened.

"Tony pinched him into the frontstretch wall, a racing thing," Graves said. “The right rear tire went down, he spun on the exit of (Turn) 2. They threw the caution and everything was toned down. Kevin got out of his car. … He was throwing his arms up all over the place at Tony for most of the corner.

"I know Tony could see him. I know how you can see out of these cars. When Tony got close to him, he hit the throttle. When you hit a throttle on a sprint car, the car sets sideways. It set sideways, the right rear tire hit Kevin, Kevin was sucked underneath and was stuck under it for a second or two and then it threw him about 50 yards."

Speaking purely as a criminal law practitioner, the video at the link above combined with these eyewitness statements (assuming they can all be authenticated and admitted into evidence) appears to provide probable cause to indict Tony Stewart for either negligent or intentional homicide in New York (though the latter would be much harder to prove).  In New York, negligent homicide could be indicted as either Criminally Negligent Homicide, or Manslaughter in the Second or First Degree.  Intentional homicide would be indicted as Murder in the Second Degree.

To convict Tony Stewart of Criminally Negligent Homicide or Manslaughter, prosecutors need to prove beyond a reasonable doubt that Stewart was criminally negligent.  The “Torts 101” summary of ordinary negligence requires four elements:

  1. Duty (the defendant owed a duty of care under the circumstances to the victim)
  2. Breach (the defendant breached their duty of care)
  3. Causation (the defendant’s breach of the duty of care is the proximate cause of the victim’s injuries)
  4. Damages (the victim’s person or property was injured).

These four elements are often summed up as the “Reasonable Person” standard: a person is negligent under the law if a reasonable person under the circumstances would not have taken the risk(s) taken by the defendant, and by taking the risk, the defendant caused damage to someone else’s person or property.

In addition to this, there is also a difference between civil negligence and criminal negligence.  Courts are fond of pointing out this difference, but in practice, they rarely provide a meaningful distinction.  The best description of these two concepts is probably the one given by Lord Hewart in the old english case of R v. Bateman:

In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete’. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.

So the prosecutor has to prove beyond a reasonable doubt that (1) Tony Stewart was negligent (i.e. that Tony Stewart breached a duty of care to Kevin Ward, causing Kevin Ward’s death), and (2)that the degree of negligence shown by Stewart was sufficiently gross or shocking to warrant criminal punishment rather than mere civil remuneration.

In addition to all that, if prosecutors wanted to charge Stewart with Manslaughter in the Second Degree, they would have to show that Stewart’s conduct was not merely negligent, but reckless (i.e. that Stewart showed a “wonton disregard for human life.”)  The line between criminal negligence and recklessness is admittedly pretty thin, but on paper, the latter is a tougher burden to meet.  If prosecutors wanted to charge Stewart with First Degree Manslaughter instead, they would  also have to prove that Stewart acted with “intent to cause serious injury” to Ward (but not to kill him).  

In this case, we have eye witness statements claiming there was a dispute between Ward and Stewart, which gives Stewart motive.  We have eyewitness statements saying that Tony Stewart throttled his car as he approached Ward.  We also have eye witness statements from a person who prosecutors might be able to qualify as an “expert witness” stating that it’s a well-known fact in the racing community that sprint cars “set sideways” when you throttle them.  And we have a video that shows most (but not all) of this occurring.  

This gives prosecutors enough evidence to build a criminal case against Tony Stewart, assuming that all of these eyewitness reports are genuine.  They can establish duty and breach with expert testimony from the witness who discussed how Sprint cars behave when the throttle is pushed.  They can establish causation with the video, and damages with Tony Ward’s death certificate.  This is enough to get to criminal negligence by default, since that determination is largely one that rests with the jury.  Intent to injure could be proved by the video (several cars managed to pass Ward without hitting him, and the caution signal was up), setting up First Degree Manslaughter.  

Keep in mind that I am not saying a criminal case should be brought against Tony Stewart.  There are plenty of reasons not to.  For example, much of this case would turn on eyewitness testimony (based on the evidence currently available), and I’d be very uncomfortable subjecting anyone to criminal sanctions in a case where the government relies so heavily on eye witness testimony.  In addition, it seems reckless for Ward to have physically left his car while the race was still in progress, before emergency crews had an opportunity to get over to him.  In the video, Ward almost seems like he’s trying to position himself in front of Stewart’s car.  So there’s just too many moving parts in this scenario for me to say beyond a reasonable doubt that Tony Stewart acted with the requisite mens rea to commit a criminally negligent homicide.

Now this is an entirely different question from whether Kevin Ward’s family should bring a wrongful death suit against Tony Stewart.  As I mentioned earlier, civil negligence is a lower standard of mental culpability than criminal negligence, and the burden of proof in civil cases is also lower.  In a civil case, the Plaintiff need only prove that Tony Stewart’s negligence by a “preponderance of evidence,” i.e. more likely than not.  51% certainty is enough in a civil case.  It’s not enough in a criminal case, however.

July 8, 2014
Yankees fan caught sleeping on TV sues ESPN, MLB for $10 million

A Yankees fan who was caught sleeping during a broadcast is suing MLB and ESPN because sportcasters made fun of him on the air.  Aside from the outrageous damages claim, I thought this was an interesting snippet:

According to the report, Rector’s suit was riddled with typos and improper grammar, claiming the broadcasters insinuated that he “is a fatty cow that need two seats at a time” and “is a confused individual that neither understands nor knows anything about history or the meaning of rivalry between Red Sox and Yankees.”

I was surprised to see the bolded sentence and then learn from the face of the complaint that he’s represented by counsel.  Rule number one of private practice: don’t turn in legal documents “riddled with typos and improper grammar.”  These complaints are public record, and news organizations often have dedicated reporters to covering the courthouse.  That’s one heck of a black eye for the attorney.  Oof.

June 20, 2014
Want to run for political office? Don't work as a public defender first - ABA Journal

From the article:

An interesting tidbit about Hillary Clinton’s background you may not know:

Money quote:

If you ever wondered how mass incarceration got where it is today, you can thank the stigma behind working as a public defender.  ”Criminals” and “crime” are an easy way to stoke fear among the electorate.  Demonizing criminals is good politics.  Politicians convince people that criminals are an evil “other” out to harm you and your family.  You, on the other hand, are no criminal.  You’re a good, law-abiding citizen. Despite the fact that you’ve probably committed numerous federal felonies, violate traffic laws almost every day, and maybe you’ve even pirated a few songs or movies in your day—also a federal felony.

In reality, the only difference between a criminal and a law-abiding citizen is that the police decided to arrest the criminal.  But reality is not good for politics.  Making people resent public defenders because they “defend criminals,” however?  That’s good politics.  Unfortunately, it’s also terrible for society.

June 4, 2014

It is both my best and worst quality as a lawyer that this is my reaction literally every time I see a Government motion filled with bullshit legal arguments.

May 8, 2014

moonbehindclouds said: Have you heard about the civil case in the process right now, of a man being sued by Medialink, over a comment he made on Amazon over one of the company's routers that displeased him?

I have.  I think Mike Masnick at Techdirt  summed this one up:

It’s an age-old story. Guy buys a router. Router sucks. Guy writes negative 1-star review on Amazon. Company threatens to sue him for defamation. Because it’s not like every otherattempt to sue over negative reviews ends badly

It is true that Reddit user trevely’s original review did make some strong claims, which clearly, the router maker, Medialink, objected to. Trevely has since edited his review to clarify which parts were opinion and which were clear facts. Medialink’s main complaints were that the original review claimed that many of the positive reviews of their router were fake, and that the router was just a rebranded version of someone else’s router. Still, the original review was no worse than many standard negative reviews, and given how many other reviews Medialink had, you’d think that Medialink would just let this go, rather than call in the lawyers — and suddenly get so much more attention to the negative review. Oh, and more attention to the positive reviews… and their legitimacy. 

Whether or not they are actually fake, some Reddit users have certainly spotted some fairly questionable 5-star reviews, like the one guy who seems to think that the router is actually a set of car headlight bulbs. And, others have long suspected fake reviews on the product, so it’s not like trevely just made this up out of nowhere. 

As for the rebranding claim, well, as the original review noted, that seems to be confirmed by a filing with the FCC, in which Medialink directly says that the equipment is “electrically identical” to the Tenda router that trevely was pointing to. Oops. 

Here’s the deal: in order to be liable for…ahem…libel…you need to prove:

  • The defendant published a provably false and defamatory statement concerning the plaintiff.
  • The defendant acted with a sufficiently guilty state of mind (negligence in some cases, reckless disregard or purposefulness in others).
  • The defendant did not have a legal privilege to publish the statement.
  • Damages (unless state law allows for libel per se, which provides that the Plaintiff doesn’t have to show damages in certain cases)

To “publish” means to disclose to a third party.  The state of mind required varies with the circumstances.  In the case of public figures, courts require “actual malice,” i.e. actual knowledge of falsity or reckless disregard for whether the statement was true or not.

I did notice something funny about the case right out of the gate.  Here’s the first page of the letter that Medialink’s lawyer sent to the reviewer:


The lawyers state that the reviewer made “defamatory, libelous and slanderous statements about Mediabridge and its Medialink brand of Wireless Routers.”  A statement cannot be both slanderous and libelous.  Slander refers to spoken words, while libel refers to written words.  Since the disputed statements are contained in a written review, the statements can only be libelous.  The lawyers made fools of themselves right out of the gate with this one.

As far as whether the lawsuit goes anywhere, it’s hard to say without deeper knowledge of the facts of the case.  But I will say that it always makes me laugh when lawyers write letters like this.  The more bluster you put in your legal writing, the more vulnerable you make yourself to an epic smackdown from someone who actually knows what they’re talking about.

April 30, 2014
‘Verbatim: What Is a Photocopier?’

If you want to know what litigators deal with on a regular basis, this video will give you a good idea.

April 27, 2014
"Those of us who represent parents every day in child welfare proceedings know that many people who use drugs and alcohol — and even those who suffer from drug or alcohol dependence — often remain fit to care for a child. This is true regardless of race or class. We have seen over and over again that it is often far more detrimental to disrupt crucial early attachment or to traumatize children by taking them from their homes than support parents while their children are home. Foster care is a last resort that should be used only when alcohol or drug dependency results in mistreatment of the child, or in a failure to provide the ordinary care required for all children."

Emma S. Ketteringham, Managing Attorney for the Bronx Defenders’ Family Defense Unit.

April 17, 2014
Exclusive: Does Cliven Bundy Have Something Called “Prescriptive Rights”, Why The BLM May Be Afraid To Go To Court

So this is probably the sanest take on the Cliven Bundy/BLM conflict that I’ve seen so far.  From the article:

what exactly are prescriptive rights? Prescriptive right to property is an easement that gives some one the right to use land owned by someone else for a particular purpose. An example is using a path through Party A’s land to get to your land, a prescriptive easement is allowed which gives the user the right to get to his land through A’s property.

In most states, if a trespass or use of land occurs regularly for at least 5 years without the “owner” of the land taking legal action, prescriptive rights come into play. Because Bundy stopped paying his grazing fees to the BLM in 1993 but continued to use the land for over 20 years, it is possible he now has prescriptive rights to the land. That might explain why the BLM has not taken this issue to court and never bothered to file a lien against the cattle.

Granted, there have been court actions over the years. In 1998 a federal judge issued a permanent injunction against Bundy, ordering him to remove his cattle from the federal lands. He lost an appeal to the San Francisco 9th Circuit Court of Appeals. Yet, the “trespass cattle” remained on the BLM land. In fact, it took until August of 2013 for a court order to be issued saying Bundy had 45 days to remove his cattle from federal land. 15 years went by from the time of the last court case over the cattle until the BLM attempted to remove the livestock.

Of course, Bundy has not made the claim that he will not pay the fees, he simply says he will not pay those fees to the BLM because he doesn’t recognize federal authority over the land. Bundy has said that in the past, that he would pay fees to Clarke County, Nevada, though Clarke County has refused to accept them. The BLM has insisted that Bundy owes $1.1 million dollars in grazing fees for his trespass cattle.

I haven’t seen the court documents, so I can’t make any definitive conclusions about Bundy’s legal position.  But if I was to judge based on this summary of the facts alone, I think that legally speaking, Cliven is boned.  I don’t see how a claim for a prescriptive easement would defeat a permanent injunction.  Since it was permanent, that means he continued to stand in violation of it in August 2013, when the court issued a new order for Bundy to vacate his cattle from the land.  Walter Olson, a conservative lawyer who runs Overlawyered, seems to agree:

It has been objected that ownership of vast tracts of the American West by the federal Bureau of Land Management is a very bad idea, might have appalled many Framers and early legislators, and has been advanced into our own era through aggressive policies to curtail the participation of private users. I’m having trouble seeing the relevance of all this, however, to Bundy’s supposed right to defy multiple court orders. The federal government should not be in many different lines of business that it currently is in, but that doesn’t create a right of individual citizens to occupy federal installations for personal economic benefit despite court orders directed against them to the contrary.

John Hinderaker, who is sympathetic to Bundy, nonetheless makes a similar point:

[I]t must be admitted that legally, Bundy doesn’t have a leg to stand on. The Bureau of Land Management has been charging him grazing fees since the early 1990s, which he has refused to pay. Further, BLM has issued orders limiting the area on which Bundy’s cows can graze and the number that can graze, and Bundy has ignored those directives. As a result, BLM has sued Bundy twice in federal court, and won both cases. In the second, more recent action, Bundy’s defense is that the federal government doesn’t own the land in question and therefore has no authority to regulate grazing. That simply isn’t right; the land, like most of Nevada, is federally owned. Bundy is representing himself, of necessity: no lawyer could make that argument.

Cliven Bundy is in criminal contempt of multiple court orders.  That means that even if he pursues a claim for a prescriptive easement, he’d probably lose due to unclean hands.

Another issue is that, as Ben Swann notes above, Bundy’s claim isn’t that he doesn’t owe the grazing fees, but simply that he doesn’t owe them to the federal government.  He’ll pay to the county, but not the BLM.  Swann suggests that this might be a reasonable resolution:

When Devlin reached out to the BLM, he suggested that the federal agency just allow Bundy to pay the fees to the county rather than continuing with these aggressive tactics to confiscate his cattle.

“Why don’t you just let him pay them there (Clarke County)? I got a call back from the liaison saying ‘Yes, pursue it.’”Devlin reached out to contacts in Nevada to get that process moving forward. If that were to happen, Clarke County could collect the grazing fees and if it desired to do so could hand those fees over to the BLM.

But there’s a couple problems with this.  First, the fact that Bundy thinks he owes money to the county rather than the federal government places him in a tough legal position.  In court, this would function as an admission that he wasn’t the true owner of the land, which would then mean that only issue for the court to decide is whom Bundy’s grazing fees were owed to.  Since the Ninth Circuit has already decided against Bundy twice, I imagine a new court would also resolve this decision in favor of the BLM.

Second, it seems unlikely that Bundy would even agree to this arrangement if he knew the County was simply acting as a middle man for the BLM.  Bundy’s claim is that the federal government doesn’t own the land, and hence the BLM has no jurisdiction.  If he knew the county was just funneling his grazing fees to the BLM, that would seem to defeat the purpose of Bundy’s resistance to paying grazing fees to the BLM.

With all that being said, it seems like the BLM really wants to avoid an armed conflict with Bundy and his supporters.  Swann notes that the BLM is now considering placing a lien on the cattle.  This probably wouldn’t do anything to change Bundy’s position in the near term, but it would make BLM a creditor of Bundy’s estate when he dies, meaning that they could ask a Nevada probate court to order the unpaid fees to be paid out of Bundy’s probate estate.  That would probably be the most peaceful resolution to this issue, since Bundy’s primary concern seems to be with immediate possession of the land, and the BLM simply wants to obtain its grazing fees.

April 11, 2014
When Judges Attack: Prosecutorial Smackdown Edition

An Assistant District Attorney in the Bronx was recently destroyed in open court by a Bronx Criminal Court Judge.  The judge was livid about the D.A.’s failure to turn over exculpatory evidence to the Defense during a rape trial.  The Defendant spent eight months in prison awaiting trial, and the evidence wasn’t disclosed until the end of the trial, after closing arguments.  The judge took the rare step of barring the prosecutor from ever appearing in his courtroom again.  The transcript of the hearing is epic, to say the least:

The Court: I think I’ve heard enough. You can stay standing. 

I was admitted to the bar in April of 1987, and I was, at the time, an Assistant District Attorney in the Bronx DA’s Office.  I’ve always been very proud of that association, until today.  I also served as a defense lawyer and 18B counsel.  I’ve tried homicides; I have tried child molestation cases; and I have tried drug sale cases.

I have now been on this bench nine years and three months.  In all that time, as a prosecutor, as a defense lawyer, as judge, I have never once seen a Brady violation as egregious as this.

To my mind, this is an utter and complete disgrace, not just for you, but for your office in general.  Disgrace.

The excuse you offer, passing the file back and forth, no one looking and no one knowing what anything is, saddens me on one level and makes me sick on another.

For my own peace of mind, I absolutely refuse to believe that you did this on purpose.  However, it is gross negligence on your part to have not found this information, and turned it over to Defense, and for your supervisor to find it and turn it over right after Defense summations.  I emphasize those words: Gross negligence.

I recall the Defense asking before the trial started for any notes that the People had in their possession, and you blithely said, “No, we don’t have any notes.”  It turned out, unfortunately, to be a lie.  Your actions bring disgrace to both your office and to yourself.

But what really concerns me more than anything else is: Where is the justice for your complaining witness?  Where is her justice?  She had the right to have this case heard by a jury and have that jury decide whether or not they believed her allegations.  She’s lost her chance at that justice due to your conduct.

What about [the Defendant’s] justice?  The Defendant had a right to have a jury decide whether or not they believed those allegations.  Where is his justice waiting for his trial?  You have failed on so many levels, on so many levels.

Here are your sanctions:  You’re going to leave this room, and you’re never going to come back.  You can’t appear before me anymore.  I’ll tell you why, because I cannot trust anything you say or do.  I can’t believe you.  I can’t believe your credibility anymore.  The only thing a lawyer has has to offer is their integrity and their credibility, and when you’ve lost that, there is no purpose in your appearing before this Court.

Step out.

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