Scores of folks have sent me emails generated by a group called Citizens for Change, America. They want me to hear their cries for justice, and to sign on to the fight to have the courts declare retroactive application of the federal sex offender registration act unconstitutional. My first response to the emails was a weary sigh. The ex post facto clause is tricky, and most folks don’t get just how it has been gutted by the courts.
The last time the federal Supreme Court heard an ex post facto challenge to sex offender registration was in 2003, involving an Alaska decision....
February 7, 2011
One of the most terrifying cases I ever handled involved the state’s decision to seize a child upon birth and to place it in the care of strangers. The theory supporting this cradle-robbing was predictive neglect. Because the parents were suspected of having shaken another of their babies and causing injury to it, the state thought it was justified in seizing any newborns before harm could come to them.
The parents denied ever having caused harm to the injured child. But because the infant suffered a constellation of symptoms consistent with deliberate injury, the state...
February 6, 2011
"I am confused," a client told me a long, long time ago. "You are telling me I should take the deal, but you are also telling me you are prepared to fight the case." We were standing on the courthouse steps, preparing to begin jury selection in a high-stakes criminal case. "Which is it?," the client asked. The answer was simple -- both.
There is little in legal fiction or even in the musing among lawyers about the drama of plea negotiations. Plea bargaining is the silent and ever present reality of the criminal justice system. But it is neglected because it lacks the visible sport of...
February 5, 2011
My sense of things is that most jurors struggle to do the right thing. They work at the decisions we ask them to make. They try to follow the law. There are failures, to be sure. But in general, I trust a jury far more than I trust the weary eye of a judge. Lay jurors bring common sense and a fresh perspective to conflict. Judges have seen it all, and too often, to rely on common sense.
But I worry that by forcing juries to act in a vacuum, we deprive them of the right to make a reasoned moral response to the conflicts we ask them to resolve. This is particularly...
February 2, 2011
February 1, 2011
I have a secret. I think Leo Tolstoy might be reincarnate and practicing law in California. I’m not sure how far I want to go with this...
January 30, 2011
I read this morning's newspapers with more than the usual fascination. The sight of protestors on the streets of Egypt thrills me, even though I do...
January 28, 2011
One of the legislative geniuses in the Virginia State Senate thinks he has found a sure-fired way to reduce the cost of dealing with violent sex...
January 27, 2011
Governor Dannel P. Malloy should be bold in proposing reform in the state’s courts. It is not that the judiciary is opposed in principle to...
January 24, 2011
I am in the business of offering hope, but there are hopeless situations, cases in which there is nothing that can be done. Accepting that is hard...
January 22, 2011
The economic slowdown has finally trickled down to street lawyers. Clients now struggle to pay even modest fees. There is little by way of easy...