Archive for the ‘Uncategorized’ Category

Ferguson Q&A

Tuesday, November 25th, 2014

From Tumblr:


I haven’t seen the actual evidence yet, so I’ll hold off on analyzing the case just yet.

As for the prosecutor’s actions? I think it was a strategy of wussing out.

Let me explain:

I’m pretty sure the prosecutor decided early on that either (1) there was no crime here, or (2) there was insufficient evidence to prove one beyond a reasonable doubt, and that therefore the case should not be prosecuted. (IIRC, the DOJ also looked at the evidence and said they weren’t going to proceed criminally.) I myself have no idea whether this ought to have been prosecuted or not, but the way this all played out, I’m almost certain that the prosecutor himself didn’t think so.

What a prosecutor is supposed to do in that circumstance is simple: Decline to prosecute. If you don’t think someone committed a crime, you don’t subject them to the criminal justice system, period. You don’t “let a jury sort it out.” You don’t initiate the process to convict and punish a human being whom you don’t believe to be guilty in the first place. He didn’t do it? Let him go.

Similarly, if the prosecutor thinks the crime was committed, but doesn’t have enough evidence to prove it beyond a reasonable doubt, he’s supposed to decline to prosecute. Period. You don’t “zealously advocate” for conviction like some sort of civil litigator and hope the adversarial system achieves justice for you. You can’t prove it? Let him go.

Instead, this prosecutor wussed out. Having decided that this is a case that should not be prosecuted, he failed to act accordingly. I’m pretty sure he was afraid that, if he stood by his decision, he’d be pilloried in the press as covering up for the police and as just another white law enforcement asshole perpetuating all this injustice. So he decided not to make the decision at all. “Leave it up to the grand jury,” he thought, “and that way it’s their decision, not mine, and I can’t be blamed.”

That’s cowardly. A prosecutor is supposed to have the judgment to make these calls, and the balls to go ahead and… you know… make the call. Not pass the buck and the blame to an anonymous group of citizens shanghaied into a bureaucratic process.

The prosecutor then presented all of the available evidence to the grand jury, instead of the usual bare-bones presentation. [Ordinarily, you give the jury grand jury just enough evidence to ask them whether there’s probable cause to let you proceed to trial.] This is not, in itself, a bad thing. I myself tended to give grand juries all of the relevant evidence at my disposal. [Unlike many prosecutors who are afraid of creating cross-examination fodder for the defense, or give details that an alibi could be constructed around, I simply preferred to show them that I’m holding all the cards. A much better strategy, in my experience.] And I had grand jury presentations that lasted more than twice as long as this one did (though, granted, they tended to involve years’ worth of wiretaps and surveillance or warehouses full of documents, rather than a single event that lasted a few minutes). My point is, the amount of evidence and the length of the proceeding don’t offend me in the slightest.

But here, the reason why the prosecutor gave the grand jury all of the evidence was plainly to pass the buck. He didn’t want anyone saying he’d cherry-picked the evidence to make it look like the cop didn’t do anything wrong. No sir! Rather than let anyone think he’d influenced the decision in any way, he would simply present everything and let the grand jurors sort it out.

That’s passing the buck. That’s wussiness of lowest degree.

And what was the result? Did he avoid finger-pointing? No! The people who would have pointed fingers at him were going to do so regardless, and theydid so regardless. Instead of accusing him of cherry-picking the evidence, he’s accused of presenting too much, of [gasp!] showing his Brady material to the grand jury, of letting the defendant tell his side of the story (defendants have the right to do so, by the way).

Did he avoid accusations of being the police’s advocate, of being yet another white cog in the injustice machine? No! His unusual tactics just made everyone more suspicious that he was doing something fishy. His failure to get an indictment when everyone knows you can indict a ham sandwich makes people think he threw the game.

Not only did he fail to avoid criticism, he made it worse. By failing to have the courage of his convictions, he undermined everyone’s perception of the justice of the system. And perception is EVERYTHING in this game. Everything. If the public doesn’t perceive that justice is being done as a matter of course, then the system loses legitimacy and things can go to hell really fast.

Not only did he do precisely that which would undermine the trust of those whose trust he needed to win back so desperately… he put a man whom he clearly believed should not go to trial at risk of being subjected to a circus of a trial and a punishment that public blood lust would guarantee to be severe. A punishment the prosecutor himself did not think was deserved. Again, I don’t know whether it was deserved or not, but the fact that the prosecutor was willing to subject another human being to that… solely to avoid a little criticism?

It’s beyond cowardly. It’s despicable.

Even if he thought the guy was guilty, everything he did was the opposite of what a prosecutor’s supposed to do. He made everything worse.

Hello again

Tuesday, July 16th, 2013

Hello, again. That was quite the hiatus, there.

Long story short, I sort of got the feeling that folks wanted me to spend more time on the comic, which ate into the time I would have spent doing this.  And eventually took over.  Which is a shame, because here I don’t have to stick to my syllabus, but get to write about whatever’s going on.

But three people in three days have told me that this blog was in fact valuable for them.  And I did miss it.  So I guess I’ll have to make time for both.

The next post won’t take any time at all, though — I’m just going to cut-and-paste an answer I wrote to one of my Tumblr followers last night about the Zimmerman case. That’s cheating, I know.  But I promise more new content shortly.


Tuesday, September 11th, 2012

I’ve been taking a break from posting here while cranking out the last installments of my guide to criminal law. The last one went up today (it touches on terrorism, but the fact that it was posted on 9/11 was the purest coincidence).

And just in time, too. Because the book can now be pre-ordered from the publisher.

You read that right. YOU CAN BUY THE BOOK! Yeeha!

Awesome book cover

Well, what are you waiting for? Stop reading this and go make my publisher happy.

On Strict Liability, Regulatory Offenses, and Overcriminalization

Monday, August 13th, 2012

The latest Illustrated Guide post is finally up. It only took for-freaking-ever, what with work and family and something like twenty rewrites. It goes into some of the problems with strict liability, overcriminalization and regulatory crimes — which is the perfect way to sneak in a (simplified) history lesson  on criminal law, to show how the problems developed. It wraps up with some preachy solutions.

It’s the longest one yet, with 56 panels and over 100 drawings. The tl;dr version is “good people still get in trouble, but it’s fixable.”

The first half can be seen here.

The second half can be seen here.

. . . . .

Here are some random samples:

. . . . . -=-=-=-=- . . . . .

. . . . . -=-=-=-=- . . . . .

. . . . . -=-=-=-=- . . . . .

See the rest here.

Next time, a real blog post. Promise.



Plugging Away

Tuesday, February 7th, 2012

In lieu of a regular blog post, I figured I’d leave a sample of the illustrated guide to crimlaw I’m doing on Tumblr (a link to the full series is over there on the right). Regular writing will resume shortly. Enjoy.




Still here

Wednesday, January 11th, 2012

We haven’t gone anywhere.

Well, actually we did. We spent a couple of weeks visiting family for Christmas and New Year’s. And then took a week getting back on top of work. In the meantime, a dozen great post topics have come to mind only to be forgotten (or, if we happened to have a pencil handy, rapidly jotted down for later rejection).

Still, we’ve managed to put out some more installments in our illustrated guide to criminal law. Part 8 on actus reus just went up, and you can click the link at the right to see the whole series. Next up is attempt, then we’ll cover strict liability, liability for the acts of others, defenses, where the law comes from, examples of crimes, the rule of law, terrorism… and then we’ll get to the procedural, constitutional and policy stuff. Enjoy!

But we’re not neglecting the blog. We’ll be back shortly.

Be Right Back

Wednesday, December 21st, 2011

Any SEO guru worth his fee will tell you that, once your blog gets some mention or award or whatnot, you need to pump out a lot of content right away. Otherwise, people who come to visit out of curiosity will stop coming back when they don’t see updates. And I have no reason to doubt that they’re right.

Nevertheless, we don’t write this for the hits. So after the ABA Journal very kindly put us on their blawg list a couple of weeks ago, we didn’t start churning out more posts — on the contrary, we’ve only had one substantive post since then. There has been plenty to write about, but we just haven’t gotten to it.

The reason, of course, is that we started doing our illustrated guide to criminal law about the same time, and the response has been so unexpected and overwhelming that we’ve felt obligated to get at least the introductory sections finished before the holidays. Starting off with first principles, we’ve covered what crime and punishment are, and the various purposes of punishment, and now we’re working on a sixth installment on mens rea and culpability. With any luck, we’ll have that out this week.

And then we’re taking a break with the family, which usually means even less time to write than usual, so there might not be another update here until after New Year’s.

So if we don’t get a chance to rap at ya before then, here’s wishing you a merry Christmas, happy Hannukah, cool Kwanzaa, super Solstice, and a very happy New Year!

Best wishes,


Worth Watching

Friday, December 9th, 2011

Harry Morgan died this week. When we were in grade school, we knew him as Col. Potter on M*A*S*H and as the Sheriff in “The Apple Dumpling Gang,” two characters that seemed to our young eyes to be the most “real” on either show. But of course he did a lot more than that. Plenty of excellent eulogies have been written elsewhere, but we thought we’d share a clip from his old “Dragnet” days that seems as appropriate now as it did then.


So apparently we’ve got a Tumblr

Friday, December 2nd, 2011


So now we have a Tumblr.

It was bound to happen, really. There are plenty of questions, issues and misconceptions about criminal law; we like explaining things; we like drawing things (poorly); people like learning stuff with pictures… So doing a webcomic sort of guide to criminal law just seemed natural.

And making a Tumblr out of it makes more sense than posting them here on the blog. The voices are just too different to put them both in the same place. And Tumblr’s more of a visual medium.

We’re calling it “The Criminal Lawyer’s Guide to Criminal Law (with pictures!)” We are very creative with titles, as you probably are aware.

We’ve got several posts already planned out, and the first one is up here. They’re going to be very rudimentary at first, but soon we expect to have worked through to some tougher concepts.

It’s silly, sure… but it’s fun. We’ll get a kick out of it, even if nobody else does.


Thursday, December 1st, 2011

The Criminal Lawyer made the ABA Journal Blawg 100 today, much to our surprise. We are quietly proud.

Be sure to check out the list, there are a lot of excellent blogs there that might be new to you. And weren’t you just saying to yourself how you need some fresh stuff in your RSS reader?

During the month of December, the ABA Journal is having people vote for their favorites in each category. If you’re so inclined, you can give us an upvote in the “Criminal Justice” category here.

More importantly, we’d like to thank those who nominated us (whoever you are), and especially thank all of our sexy sexy readers. You guys are awesome, and not just because you have excellent taste in blogs.


Read These

Saturday, November 26th, 2011

We probably shouldn’t have titled our last post “Free Time.” Apparently that was too hubristic for the gods, who have denied us any more for the writing of a post this week. At least one that’s more wheat than chaff. (The blogosphere has more than enough chaff as it is.) But we did have sufficient time to spot some other folks’ posts that are insightful, thoughtful and remarkably chaff-free. In case you missed them, here are a couple from the past day or so really worth the read:

First, Radley Balko’s piece “Driven by Drug War Incentives, Cops Target Pot Smokers, Brush Off Victims of Violent Crime.” In it, he describes even more of the perverse incentives our well-meaning politicos have given the police, incentives not only to devote disproportionate resources to drug enforcement, but also to make bad arrests, plant evidence, seize whatever they can get their hands on as forfeiture, and otherwise do the exact opposite of what we pay them to do.

Next, Scott Greenfield’s “Those Who Can’t, Teach Law.” One of the more thoughtful responses we’ve seen to the less-than-awesome NYT piece on law school failing to teach the practice of law.

We’ve got some pretty strong views on both of those topics, and maybe if we get a chance we’ll impose them on you share them with you later. But in the meantime, or if we never get around to it, you could do a lot worse than to read these.


Free Time

Friday, November 18th, 2011

We love reading the advances of real scientists doing real research. It puts us in our place when we’re feeling all smart — here are people actually advancing knowledge and doing stuff for real! — and at the same time we get to learn some really cool stuff.

For example: It was January of 2000, and we were sitting in a Hell’s Kitchen Dunkin’ Donuts, just looking out the window, thinking about this and that, when suddenly we had an epiphany: What if the wave function was a real thing, and we just saw the sliver of it that coincided with our own dimension?

You have to understand, this was back before we got married and had kids, and so we occasionally had what was called “free time.” (We’re not sure what it’s called these days, it’s been so long since we had any.) How it worked was, we had “free time,” which we spent pursuing various hobbies like motorcycling, playing in bar bands, and the like. We had gone to the Dunkin’ Donuts after a lackluster rehearsal with an acting company we were with at the time (another hobby), and our mind must have turned to quantum physics — which had been a mild hobby of ours ever since John Crowley showed us that Omni article on string theory back in our freshman year of high school. The more we learned about it, and all the spooky nonsensical impossible stuff that apparently was really being observed, the more we dove into it. By 2000, we’d written off string theory as hopeless, and were waiting for some brilliant scientist to come up with something like Garrett Lisi did some years later. We weren’t contributing anything, of course; just trying to understand the current state of knowledge.

So anyway, what our epiphany was, was that it seemed you could explain a lot of that spooky nonsensical impossible stuff if you thought of things like photons and electron as not being particles or waves or whatever, and instead thought of them as wavelike things rippling or oscillating in a higher dimension, and what we saw was nothing more than the points where they intersected our 4-dimensional reality. You need more dimensions for the math, but you only need 5 to explain it.

Take the standard 2-slit experiment. You shine a beam of photons at a screen with two slits on it, and on the far wall you’re going to get an interference pattern as the two sets of waves from each slit interact with each other (as in the hastily-photoshopped image at the top). If you shoot individual photons through a single slit, you get just a single patch of light on the far wall. If you shoot individual photons at the two-slit screen, the same interference pattern builds up as if each photon had interfered with itself, and found a spot on the far wall in that interference pattern. It makes no sense if the photon only exists in our 4-dimensional world, and yet it happens.

But if you think of the photon as something one dimension higher, it’s easy to contemplate.

(Note: what follows is not science, but only what occurred to us as we sipped our hot chocolate that day.)

Think of a 3-dimensional sphere. If you only experienced (more…)

Trying Out a New Comment Thing

Tuesday, November 15th, 2011

We’ve just adopted a nifty little tool we’ve noticed on a few other blogs we follow — When you’re leaving a comment, if you provide the web address of your own blog, then it’ll provide a link to your latest blog post at the end of your comment. A harmless way to share the love, we think. (And you can disable it by unchecking the CommentLuv box before commenting.)

That is all.

Happy Halloween

Monday, October 31st, 2011





Happy Halloween

The Criminal Lawyer Turns 3

Thursday, October 6th, 2011

Huh, we kept it up for another year. Three years of The Criminal Lawyer, happy birthday to us. To be sure, three years is by no means venerable in the blawgosphere, and we’ve only written about 300 posts in that time, but it’s nice to say that it’s made it past the terrible twos.

There were a few small changes this year. A few tweaks to the appearance, some new code to make things run more smoothly. We ran an experiment to see how ads worked with the blog, but decided they weren’t worth the ugliness, so as soon as the experiment was over so were they. We also broke down and got a Wacom tablet, to improve our photoshopping and create the occasional drawing (like the one above). We sometimes spend more time on the image, now, than on the writing (which isn’t saying much).

A bigger change was to free up commenting. We’d made it difficult to comment before this year, but now it’s pretty easy. We’re still fairly heavy-handed with the monitoring, and anything resembling spam goes bye-bye. But the number of meaningful and useful comments has certainly gone up. We’d like to see it continue. (When a post attracts no comments, we attribute it to the fact that what we said was so self-evidently true and complete, that not a word needs to be added to its perfection.)

Despite lobbying from Scott Greenfield, we did not switch from the editorial first-person plural to the more usual first-person singular. Sorry, Scott.

Our readership certainly improved dramatically this year. Individual posts sometimes get more hits in a day than the whole blog used to get in a month. Spikes in readership didn’t really coincide with any particular post, seeming to come out of the blue, but our pieces on law school and entering the legal profession seemed to bring the most immediate (if temporary) spikes.

The bits on law school and the legal profession certainly got more people upset, that’s for sure. It’s a shame when someone gets upset at something we’ve said, but they are always free to cancel their subscription.

The one post with the single greatest number of hits — triple even the most popular law-school post — was the one about prison being a problem rather than a paradox, and is it solvable. But that wasn’t even one of our favorites. We’re more partial to the ones on overcriminalization and legal policy, wonk that we are.

The most common Google searches that brought people here this year were variations on things like “why become a lawyer,” “what to say to a judge at sentencing,” and “can an undercover cop lie about being a cop.” We tried to answer the most common pressing questions here. Another very common question people Googled, which was not addressed there, is whether the LSAT tests you on math. Last time we checked, it did not. Hope this helps.

The most amusing Google searches that brought people here more than once included such things as “adam smith galleon” (79 visits), “show of hands” (55 visits), “lawyers to avoid” (oh, thank you very much — 36 visits), “chutzpah defense” (23 visits), and 88 visits from the oddly specific “how to win friends and influence people in the digital age,” which was the title of a post we wrote back in February, and oddly enough the title of a book that was just published two days ago. (Don’t worry, author of said book, we won’t sue. The substantive stuff we write gets lifted by other blogs and news sites often enough — even our original copyrighted artwork has appeared on reputable websites of well-known news organizations and the like. We’ve decided to take it all as flattery.)

So here’s to another year. We’re going to keep writing this whether anyone else reads it or not. (And if you stop reading it, you’ll be in good company, including such fine people as our wife, who stopped reading it nearly three years ago.) We do it strictly for our own enjoyment, and we very much like doing it. If you like it too, that’s great, and thank you for stopping by. If you don’t happen to like it… well, who can blame you.