This and that

1. There are things I see and hear at sentencing that deaden my soul. Like the parents who made child pornography with their own little kids. The excellent panel lawyer who represented one of the defendants refused to accept my thanks and compliments for taking this horrific case. In chambers, he said, wryly, “Hell, judge, I thought it was a drug case.”

2. A young black man on supervised release on my docket was driving drunk with his pals. A white cop pulls them over. The driver–my kid on supervised release–tries to slide into the back seat. His buddy takes the driver’s seat. He intends to take the rap for his friend. The only problem is that the officer’s cam captures the stupid scheme. As the officer is arresting my supervised release offender, the kid becomes abusive. He brings up Ferguson, Missouri and utters the slogan “Hands up, don’t shot.” Other racial abuse follows. The officer doesn’t react. Later the kid admitted to me that he played the race card in an effort to provoke a fight with the cop and avoid state prosecution that would surely result in his return to federal prison.*

3. I finished my Federal Sentencing Reporter article. It argues that actuarial data relating to similar offenders such as race, gender and age that are empirically correlated with a risk to reoffend should be taken into account at sentencing. It is a detailed rebuttal to General Holder’s speech this summer. I’ll let you know when it comes out.

4. This Thursday, I will be honored to give the George Norris Lecture at the University of Nebraska a Kearney. I will be talking about “judicial activism” and asking whether Nebraska’s first federal judge, Elmer Scipio Dundy, was an “activist judge” when he granted a writ of habeas corpus to a band of Indians. For those of you who read this blog, you may remember I am speaking of the famous Standing Bear case that I have previously written about.

5. Cover_art_for_Firing_Line_program_featuring_William_f._BuckleyI remain tired and weak. Slept most of Friday and Saturday. UNK will kindly allow me to give my lecture from a nice soft chair if I tire at the podium. Sorta reminds me of William F. Buckley’s “Firing Line” where Buckley held forth while seated in a comfy chair. Except my presentation will lack the erudition of the intellectual giant who was Buckley. I do think, however, that I may use a pencil as a prop.



*In the study of rhetoric, there is something called the “moral equivalence fallacy.” See Odessa College, Fallacies of Argument. It suggests that serious moral wrongs are no different in kind than minor offenses. Therefore, and to be clear, the act of an offender provoking a police officer does not justify, for example, the officer shooting the suspect in the back.


8 responses

  1. One of my dearest friends was the head of the production company that produced Firing Line. Whenever Buckley would have a particularly cool guest, he would give me a call and tell me to get my butt over to his studio, where he would plop me down in the green room and let me bask in the reflected brilliance. He was also exceptionally funny, witty and charming.

    Watching Buckley in person, his tended to lean so far to the right (in his chair) that there was a standing bet amongst the production staff as to when he would fall over. They were certain it would happen, but it never did.

    I want to be Bill Buckley when I grow up.

  2. While it seems strange now, there was a time when the Federal Turntable Doctrine was regarded as a radical innovation. Dundee was author of one of the first opinions. Back in late 20s Manley O Hudson a Harvard Law prof wrote an article in Harv L Rev defending the doctrine.

  3. I am not and have never been a lawyer, though I do have a law degree. About three hours ago, I posted the below comment at another website, where I hoped someone with the legal expertise requisite for proper reply to it would encounter it. Because I gather that you are a lawyer and that some of your commenters are, too, I presume to post it here as well, in the hope that you or one of your commenters will address it. Here goes:

    What troubles me about the case of the Walter Scott shooting is the seemingly-casual characterization of a possible police error as a criminal deed. At least some of the discussion of the emerging video evidence, audio evidence, and eyewitness testimony seems focused on the question whether the shooting of Scott by Officer Michael Slager was lawful. In effect, the discussion has to do with the legal question that seems to have been established by Tennessee v. Garner: Did Slager have probable cause to believe that the fleeing Scott posed a threat of serious physical harm, either to him (Slager) or to others?

    Is that really the question here? Let’s suppose that the totality of the evidence (which is not yet all in) would convince any reasonable person that Slager did not have the probable cause. Would that in itself mean he is guilty of manslaughter or murder? Wouldn’t criminality have also to do with his perception of the situation?

    Let’s suppose, as I say, that Slager did not have the probable cause—but that he himself, at the moment of the shooting, thought he had the probable cause, that he was not acting maliciously, wantonly, or even recklessly. Okay—then I could see that, say, the municipality could be sued, for, say, wrongful death by police negligence or something like that—but would he himself be guilty of murder or manslaughter—or even of negligent homicide?

    There do seem to be many persons who think Slager acted murderously. Fine—that’s their view; but what troubles me, as I say, is that that seems to be being treated, in the news outlets and elsewhere, as the only bad possibility: Either he was justified in shooting Scott—OR HE’S A MURDERER!!!!

    I’ll ask it again: Is that so? When the murder charge was announced, the North Charleston Mayor and police chief seemed to be talking that way: They were saying that Slager deserved to be charged with murder because he’d made a “bad decision.” That was the very phrase that was used by the Mayor: a “bad decision.” Nobody seems to have pointed out that that made no sense either to the supporters of Slager or to those who despise him. Persons on each side had to be thinking: “A bad decision? That’s what this was?”

    As I’ve said, I’ll appreciate it if you or one of your commenters will be able to throw light on this. I really don’t know what to make of it.

  4. Thank you for directing me to that other blog post, Marcos D. I have now read it and have read the comment thread that follows it. In case you will be interested, I’ll let you know I’ve posted a follow-up (to my above comment) in that thread.

%d bloggers like this: