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Sai (saizai)
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Fiat fiendum.
Fiat fiendum.

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I can't comment. I externed for K., so whether I did or didn't see anything that might bear on this is covered by chambers privilege / NDA / Code of Conduct for Judicial Employees (Canon 3D). Please direct comments to OP.
Sexual harassment in the workplace, when your harasser is your boss who is a top legal mind:
Statement from Heidi Bond, former SCOTUS clerk now accusing Judge Kozinski of workplace sexual harassment. [Direct link below, not link at photo]
In the 1st half she describes what he did, but in the 2nd half, she talks about the roles of power & the duty of loyalty, & asks some of the smartest legal minds out there what to do. Note what they tell her.

Her statement: http://www.courtneymilan.com/metoo/kozinski.html

Media about it:
https://www.washingtonpost.com/world/national-security/prominent-appeals-court-judge-alex-kozinski-accused-of-sexual-misconduct/2017/12/08/1763e2b8-d913-11e7-a841-2066faf731ef_story.html

http://www.latimes.com/local/lanow/la-me-ln-kozinski-sexual-misconduct-20171208-story.html

https://www.law.com/sites/therecorder/2017/12/08/misconduct-claims-against-kozinski-put-new-spotlight-on-past-controversies/
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Skip to about 18:40 (where the prosecutor comes up) for the fun part. It starts immediately. Prosecutor: "Good morning, may it please the court — Greg Broderick for the United States." J. Kozinski: "How can you do that?"

Schweder was prosecuted by the feds for growing medical marijuana in CA. Most of the district court case was a challenge to pot being on Schedule 1 to begin with. He lost that, since the judge held that there wasn't enough evidence to prove that pot has an accepted medical use. (Who has the burden of proof, and what's admissible, matters a lot.)

See http://edca.typepad.com/eastern_district_of_calif/schweder-marijuana-case/ for very extensive coverage and analysis of this case by John Balazs.

While Schweder's district court case was pending, the 9th Circuit decided US v McIntosh, 833 F.3d 1163 (2016), which held that the government can't prosecute federal pot charges for people complying with state pot laws because Congress passed the Rohrabacher amendment, which is a rider on the yearly consolidated appropriations act prohibiting DoJ from spending money on prosecutions for acts that comply with state marijuana laws.

The government wouldn't let Schweder keep a plea deal open to find out how McIntosh was going to turn out, though, so he took a 10-year plea before that decision came out. (He's currently in prison.) He's now appealing from that conviction.

Outcome of this hearing: http://edca.typepad.com/files/schweder-9th-cir-order-12-5-17.pdf
McIntosh: https://scholar.google.com/scholar_case?case=14800733384205205829
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My public interest work is now under +Fiat Fiendum — a remake of my existing 501(c)(3) nonprofit (Make Your Laws C3), with +Yonatan Zunger added to the Board of Directors.

My political work will still be under MYL PAC / C4, and my personal litigation (i.e. TSA) is still just-me. But if you'd like to help support my work from now on, it's tax deductible and your employer might do matching donations.

If you'd like to help — e.g. to make the website, administer the servers, design a logo, organize a production run of CopCards, organize FOIA disclosures, etc — please let me know.
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Sims was a minor prosecuted for possession of child porn of himself (i.e. sexting his girlfriend). Abbott was a cop investigating the case. On the first case, the prosecutor dropped charges (nolle prosequi).

Abbott continued "investigating". He applied for, and got, two warrants to get pictures of Sims' erect penis, for "forensic" comparison to the sexting photos. He executed the warrant by forcing Sims to masturbate in front of him and two other armed cops, and taking photos thereof.

On the second round, Sims was convicted of felony child porn possession (again, for his own dick pics). The prosecutor chose to not use the photos as evidence. He was given suspended sentence, which he completed.

He then sued the cops.


District court granted Abbott qualified immunity and dismissed everything.

CA4 (Keenan & Diaz) reversed, since reliance on such a warrant was objectively unreasonable and cops don't need precedent on point to tell you not to make a minor masturbate for their investigation.

King dissented, seeing it as not a 4th Am. violation in the first place, and anyway QI protected due to the warrant's approval.

Sims v. Labowitz, No. 16-2174 (4th Cir. Dec. 5, 2017)
http://www.ca4.uscourts.gov/opinions/162174.P.pdf

Sims v. Richardson & Labowitz, No. 1:16-cv-572 (E.D. Va. Sept. 19, 2016)
https://scholar.google.com/scholar_case?case=10264021641172414064


To top it off, before trial, Abbott killed himself when he was being arrested for two counts of child molestation. That's why Labowitz (the estate executor) is the defendant. (Richardson was the prosecutor.)

https://www.washingtonpost.com/local/public-safety/manassas-city-police-detective-in-teen-sexting-case-commits-suicide/2015/12/15/de88f7c4-a356-11e5-9c4e-be37f66848bb_story.html


ETA Extra bonus:

1. Abbott sued Sims' lawyer for defamation 'cause he had called Abbott's investigation methods "crazy". The case was dropped a year later.

https://www.washingtonpost.com/blogs/local/wp/2014/11/13/manassas-city-detective-in-teen-sexting-case-sues-teens-lawyer-for-defamation/
https://www.washingtonpost.com/local/public-safety/manassas-city-detective-drops-libel-suit-against-lawyer-in-sexting-case/2015/11/19/98478d42-8e30-11e5-acff-673ae92ddd2b_story.html

2. The city says that getting erect-dick pics was the the prosecutor's idea, not Abbott's.

http://www.manassascity.org/ArchiveCenter/ViewFile/Item/5985


ETA 2 CA4 oral argument: http://coop.ca4.uscourts.gov/OAarchive/mp3/16-2174-20170914.mp3

It's pretty jawdropping, as you might also guess from the fact that it's 76 minutes rather than the scheduled 40.



Don't know whether the magistrate who approved this warrant got any censure.


God damn. O.o

h/t +Yonatan Zunger & +Anne-Marie Clark
https://plus.google.com/+AnneMarieClark/posts/NpJY8TDGfnD
https://plus.google.com/+YonatanZunger/posts/KGBbnCaGg3V
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Some measuring tape on my desk unraveled into a neat pattern. +Alex Fink noticed and took a photo.
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Does anyone know a good medical malpractice solicitor / barrister in London? I'll do a search myself as well of course, but recommendations are very helpful.
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This is what I get for eating ramen at my desk when I'm about to go to bed… staying up past 2am to perform emergency surgery. Hopefully the patient survives. Will find out tomorrow.
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Comments on OP please.
Alabama election laws are weird. The GOP's convulsions dealing with Roy Moore hinge on exactly how weird they are.

Updated below.

As you listen to Alabamian GOP officials hem and haw about supporting Roy Moore, you should know a few things specific to Alabama:

• Alabama has a law (complemented by party rules) that automatically punishes any elected officials for endorsing a candidate other than their party's. It's written such that "anti-endorsing" Moore may trigger the penalty as well: a six-year exclusion from any ballot printed in Alabama. So yesterday's spectacle of Rep. Mo Brooks (R-AL) literally running away from a reporter asking him if he was revising his endorsement can be perhaps better understood in those terms: if he spoke out against Moore, he could lose his seat in congress by being unable to appear on next year's primary ballot.
Even the few GOP officials who have said that they personally intend to vote for the Democrat, or write in another candidate's name, are threading a needle: they may be able to express this, but only so long as they don't make any suggestion this constitutes an endorsement or a recommendation for how other Alabamians should vote.

• Many have asked why the Alabama GOP doesn't strip Moore of his nomination, or why Donald Trump (or whoever else it's believed might have influence over Moore) hasn't made a personal appeal to Moore to withdraw. There are two reasons, with the first being most straightforward and not particular to Alabama:
The ballots with Moore's name have already been printed and sent to absentee voters; it's too late to change them. After the date the ballots are statutorily considered "printed" (in Alabama, 76 days before the election), if the candidate on the ballot wants to run, a party's withdrawal of its nomination has no practical effect. The party can withdraw funding, it can run ads or put up posters condemning the balloted candidate and supporting another candidate (perhaps a write-in, as Sen. Lisa Murkowski successfully did in Alaska after losing her party's nomination), but if the plurality of votes go to Moore and he's still a qualified candidate who says he's still in the race, he is elected regardless of any action the Alabama GOP takes at this point.

• The second reason shows why urging Moore's withdrawal is a non-starter in Alabama. First, let me explain why it could be a reasonable strategy in most other states: in those other states, if Moore had been disqualified or withdrawn, and voters picked Moore's name anyway over that of Democrat (and not the Star Trek: Discovery actor who plays the alien Saru) Doug Jones, the result would be a null election. (This is known in electoral-geek circles as "the American rule.")
The seat would once again become vacant, the governor would choose another interim Senator (or re-appoint current interim Sen. Luther Strange), and she'd announce another special primary and general election for the seat. (In which, incidentally, Roy Moore would be free to run.)
But in Alabama, a 2014 law states that in such a case, the election is not considered null under "the American rule"; instead, any ballot marked for a disqualified or withdrawn candidate (such as—in this hypothetical—for a withdrawn Moore) is considered "spoiled" and is not counted. (This is, in contrast, known as "the English rule", and will be familiar to people who have sat through election-night coverage on the BBC when each constituency declares its votes—the "spoiled ballot" count is always mentioned in the tally.)
The upshot of "the English rule" here means that the highest legitimately balloted vote-getter (almost certainly Democrat Doug Jones) wins.
(Incidentally, I can find absolutely no record of why the Alabama legislature made this change in 2014. If anyone knows, I'd be curious why this change was enacted.)

So, the GOP basically has three choices here:

1. Cede the election to the Democrat Jones. It's been eye-opening for many of us to learn how Alabama Republicans have difficulty determining which is worse, being a child molester or a Democrat.

2. Try to push a write-in candidacy. Perhaps for current interim appointment Luther Strange, or perhaps—as Senate majority leader Mitch McConnell has suggested—for the current Attorney General (and former holder of the vacant seat), Jefferson Beauregard Sessions III. The possibility of Sessions attempting to re-take his seat is one I'll come back to in a moment.

3. Tacitly continue to back Moore's candidacy. This could just be the default by inaction. It may, or may not, be informed by a presumption that the Senate will refuse to seat him or promptly eject him, at which point the (Republican) governor would again get to appoint a new (Republican) interim Senator, and announce a new round of special elections.

As an aside, I should mention there's a fourth, wild and unprecedented possibility—but if the past two years have taught us anything, it's that "wild and unprecedented" don't mean what they used to in electoral politics: the Alabama Secretary of State and Governor could together declare an emergency and cancel the election, to start over with a less problematic Republican candidate.

As far as I can tell, this provision has never been used anywhere in a statewide race for political reasons; it's heretofore been used in cases where a disaster or a massive polling failure means a normal election can't be conducted on the day planned. (For instance, New York exercised this emergency power to reschedule the mayoral election that was to be held on September 11, 2001—and they made this decision on that day, after the terror attack, after many ballots had already been cast.) But nothing seems to preclude Republican elected officials from using such emergency powers to protect party control of a Senate seat. Like I said, precedent may no longer mean anything, so this is a real possibility.

Finally—I said I'd come back to the possibility of Jeff Sessions running as a write-in candidate. This has obvious political advantages for the United States Senate Republican Conference and for the Alabama GOP: the four-term senator has near-100% name recognition, and is probably the only candidate that Republicans could be reasonably sure would win in a write-in campaign, unlike other candidates like Luther Strange who very well could result in a split vote with Moore (whether or not he was a qualified candidate on election day), resulting in a win for Doug Jones. Also, should Sessions unexpectedly not win, he could retain his post as Attorney General.

But there's another factor: President Donald Trump would love to be rid of an Attorney General in Sessions who has recused himself from issues relating to Russia, to the Trump campaign, and to Hillary Clinton. He could then hand-pick a new Attorney General who would follow Trump's will and fire special counsel Robert Mueller, and begin the politically-motivated investigations of Hillary Clinton he so desperately wants.

Trump has apparently felt boxed-in up till now, unable to fire Sessions due to his enormous popularity among conservatives and the Bannonites, and for fear of a minority of congressional Republicans banding with Democrats to take action to curtail his power over the Department of Justice. But if Sessions were to leave to resume his Senate seat,¹ Trump would be far freer to select an AG more to his liking. (Or, more precisely, Republicans in Congress would be freer to run cover for him by pretending a nakedly political power-grab was simply the president exercising his normal constitutional powers as prescribed and expected.)

So: is it contemptible that Alabama Republicans won't disavow Moore, even now? Absolutely. But it's a teensy bit less contemptible than you may think, due to quirks in Alabama election law.

UPDATE, 16 Nov. 21:30 GMT

(I've added this as a comment to several reshares; my apologies if you see it repeatedly.)

I left out a possibility that's being floated today (not because I wasn't aware of it, but because it didn't occur to me as a "choice" the "GOP" could "decide" to "use", but of course it is)—interim appointment Sen. Luther Strange could resign. Because of yet another oddity in Alabama election law, that would create a new vacancy, separate from the one Strange was appointed into, and for which a new election could be held. The election underway would be null and void.

Gov. Kay Ivey could then appoint a new interim appointee (it could even be Strange, which would be strange, wouldn't it? [cough] sorry...), and announce a new special primary, where presumably Roy Moore is not elected (though if you believe some of the polls out today, that may not be a safe presumption!), and a new special general election.

This is roughly equivalent to the "Moore wins and Senate refuses to seat him or immediately ejects him", but is cleaner for Senate Republicans, which is presumably why it's the option McConnell is leaning towards. As he'd be the one who would have to lean on Strange to make it happen, it has a pretty good chance of happening, particularly as we get closer to December 12 if Moore is up in the polls.


¹ For readers who may not be familiar, the Constitution forbids an individual from simultaneously holding positions in more than one branch of the federal government (aside from the unusual and singular case of the Vice President also officially being President of the Senate, but that's mostly a tie-breaking and ceremonial role). The Attorney General is an officer of the Executive Branch, so would be unable to take a seat in the Senate without first resigning from DOJ.
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