Category: Notorious Cases

We Keep Giving Them a Pass, and They Keep Proving We’re Fools

by · Aug 23, 2020 1:26 pm

In “Our Under-Incarceration Problem, Portland Edition,” Paul Mirengoff shows graphically the savage costs of the nostrum that passes for High Wisdom among criminal justice reformers, to wit,  that “everyone deserves a second chance.”  Of course many, possibly most, criminals deserve a second chance, but as long as we refuse to ask, “Who specifically are we dealing with?” and “Second chance to do what?” we are thoughtlessly opening the door to more criminal brutality.  And we’ll get what you usually get when you open that door  —  as a Portland, Oregon driver learned last week.

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Joe Biden’s Spokesman for “Criminal Justice Reform” — a Torture Killer

by · Aug 21, 2020 8:13 pm

It’s not a secret that the Democratic National Convention was scripted to showcase Joe Biden’s stance on the issues (just as the RNC will be scripted to showcase Donald Trump’s).  Thus it’s more than a little revealing that the person chosen to do a short slot reading the Preamble to the Constitution was Ms. Donna Hylton.  Ms. Hylton was previously most notable for being a a convicted murderer and kidnapper implicated in a gruesome 1985 torture-killing.

Want to know what “criminal justice reform” is actually about?  I’m grateful that the organizers of the DNC were forthcoming enough to give us this insight.

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The Clinesmith Plea Was Invalid and Will Have To Be Re-Opened

by · Aug 21, 2020 6:56 pm

Kevin Clinesmith is the ex-FBI lawyer who inserted the false statement that Trump staff aide Carter Page was not a CIA source into material used to secure an ex parte FISA warrant for surreptitious electronic surveillance on the Trump campaign.  He got caught and was charged with a violation of the false statements statute, 18 USC 1001.  He purported to plead guilty this week.  But because he refused to admit, and in fact specifically denied, a key element of the offense  —  intentional deceit  —  the plea is invalid.  The Assistant US Attorney should have caught this, and at all events the court should not, and legally could not, have accepted the plea when the defendant unambiguously maintained that he did not have the statutorily-required bad intent.  The plea hearing will have to be re-opened, or the case will have to go to trial.

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Still Not Guilty, but Still Hounded

by · Jul 31, 2020 2:15 pm

Perhaps the defining moment of the Black Lives Matter movement, at least before George Floyd, was the 2014 police shooting of Michael Brown in Ferguson, MO.  It gave rise to the slogan, “Hands Up, Don’t Shoot,” which supposedly captured the moment in which Brown, with hands up and peacefully approaching white Police Officer Darren Wilson, was shoot dead for no reason.  That slogan is still shouted at BLM rallies today.

A new prosecutor, a black man, Wesley Bell, was elected in St. Louis County in 2018.  He reopened the investigation.  Result:  Darren Wilson is still not guilty of any crime that could be proven to a jury under the same standards applied to everyone else.

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USCA-DC Orders Flynn Case Dismissal

by · Jun 24, 2020 8:55 am

A divided panel of the U.S. Court of Appeals for the D.C. Circuit today ordered the district judge in the Michael Flynn case to grant the Government’s motion to dismiss. The opinion is by Judge Rao, joined by Judge Henderson. The decision is not a surprise, given the strong language in the Circuit’s Fokker precedent. See this post. Judge Wilkins dissents in part, disagreeing with the majority’s decision to go forward on the merits now rather than wait for the district court to rule on the motion.

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Revisiting the Roger Stone Sentencing

by · Jun 23, 2020 2:53 pm

Tomorrow, one of the line prosecutors in the Roger Stone case will testify before the House Judiciary Committee.  A news story relating part of his prepared testimony tells us that the attorney, Aaron Zelinsky, plans to say, among other things:

What I saw was the Department of Justice exerting significant pressure on the line prosecutors in the case to obscure the correct Sentencing Guidelines calculation to which Roger Stone was subject – and to water down and in some cases outright distort the events that transpired in his trial and the criminal conduct that gave rise to his conviction….What I heard – repeatedly – was that Roger Stone was being treated differently from any other defendant because of his relationship to the President. I was told that the Acting U.S. Attorney for the District of Columbia, Timothy Shea, was receiving heavy pressure from the highest levels of the Department of Justice to cut Stone a break, and that the U.S. Attorney’s sentencing instructions to us were based on political considerations.

Zelinsky’s account seems both odd and oddly incomplete.

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The Standard under which the Flynn Case Should Be Decided, and the Correct Result

by · Jun 10, 2020 5:12 pm

On Friday, the US Court of Appeals for the DC Circuit will hear oral argument on the petition for mandamus to require the district court to grant the government’s motion to dismiss the case against Gen. Michael Flynn.  Fed. R. Crim. P. 48(a) permits the government, “with leave of court,” to dismiss the prosecution.  The key question, then, is how much discretion the district court has under the “leave of court” language and under what standards that discretion should be exercised. Continue reading . . .

John Gleeson, Making the Same Old Mistake

by · Jun 10, 2020 12:35 pm

When the government filed its motion to dismiss the Flynn prosecution rather than proceed to sentencing, Judge Sullivan appointed former federal prosecutor and US District Judge John Gleeson as a “friend of the court” to evaluate how the court should respond.  The preeminent question is whether and to what extent it is consistent with separation of powers for a court to compel the executive branch, which alone has to power to press criminal charges, to continue to prosecute a case it now views as irretrievably tainted by prior FBI misconduct.  Judge Gleeson today filed his amicus brief, arguing that Sullivan should reject the government’s motion and continue the prosecution to sentencing notwithstanding the prosecutor’s desire to stand down.

In a coming post, I might address the merits of Judge Gleeson’s recommendation, which I view as both legally incorrect and inconsistent with the ethical standards the judiciary should want  —  not resist  —  from the Justice Department.  But for however that may be, I write now to point out that Judge Gleeson is uniquely unqualified to hold forth on the separation our system embraces between the role of an advocate and that of a judge  —  unqualified because Gleeson himself, while on the bench, breached that separation to an extent I have never seen before in more than 40 years practicing law.  The story is here.

Oh Where, Oh Where Has the Defense Bar Gone? Oh Where, Oh Where Can It Be?

by · Jun 4, 2020 12:04 am

Remember Dzhokhar Tsarnaev, the Boston Marathon bomber who blew up an eight-year-old?  Remember John Allen Muhammad, the Beltway sniper, who used random shoppers for target practice?  Remember Zacarias Moussaoui, the Jihadist 20th hijacker on 9-11?  There was no credible doubt about either their factual guilt when they were arrested or about the mind-bending hideousness of their crimes. But what did the defense bar, finger as ever in the air, tell us then?

“The presumption of innocence is the cornerstone of our system.”  “Take a deep breath and wait for all the facts to come out.”  “Don’t rush to judgment.”  “We don’t know what the prosecution is hiding.”  “The DA wants to tack another scalp to his wall for political gain.”  “Even the most despised defendant deserves fair play.”  Etcetera.

Question:  Have you heard any of that about Derek Chauvin, who now is certainly the most despised defendant in America?  I sure haven’t.  Next question:  Why not?  Well, one might speculate that Chauvin is identified with the true Untouchable Caste in this country  —  no, not a child killer or a gleeful mass murderer.  A former cop.  No wonder the defense bar is on vacation.