Category: Criminal Law

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UCLA Law Review Vol. 63, Issue 6

Volume 63, Issue 6 (August 2016)
Articles

President Nixon’s Indian Law Legacy: A Counterstory Carole Goldberg 1506
Principles of International Law That Support Claims of Indian Tribes to Water Resources Reid Peyton Chambers & William F. Stephens 1530
Crime and Governance in Indian Country Angela R. Riley 1564
Recentering Tribal Criminal Jurisdiction Addie C. Rolnick 1638
The Politics of Inclusion: Indigenous Peoples and U.S. Citizenship Rebecca Tsosie 1692

 

Comments

Tribal Sovereignty, Tribal Court Legitimacy, and Public Defense Lindsay Cutler 1752
The Double-Edged Sword of Sovereignty by the Barrel: How Native Nations Can Wield Environmental Justice in the Fight Against the Harms of Fracking Geneva E.B. Thompson 1818
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Lenny Bruce – 50 Years Later: Still Funny & “Unsafe”

Warning: The man of whom you are about to read once offended many, and his words continue to do so today.  

Lenny Bruce died for our sins.

FileLenny-bruce-on-stage.jpgOkay, it’s just a joke.

Still, the uninhibited comedian’s legacy did have its redemptive side. After he died, fifty years ago today, no comedian was ever again prosecuted for word crimes uttered in a comedy club. By that cultural measure, Lenny Bruce became the patron saint of standup comedians who freely mock those who trade in hypocrisy.

Before there was Larry David, Penn Jillette, Margaret Cho, Lisa Lampanelli, Chris Rock, or George Carlin, there was Lenny Bruce. He was the quintessential take-no-prisoners comedian. His comedic fare was robust; his style avant-garde; his method crude-blue; and his message upset some and delighted others. Did he shock? – yes. Did he offend? – yes. And was he funny? – yes, outrageously so, at least at his best moments. It’s all in a new documentary titled Can We Take a Joke?

Taboo: That was his off-limits destination. En route he tore into hypocrisy with buzz-saw vigor. No matter the subject – race, religion, politics, or sex – Bruce gave no dime to the Sunday-pious crowd. But when one deals in the forbidden, when one mocks the righteous, and when one does so with razor-cutting humor, there are consequences.

Such as?

Lenny Bruce was prosecuted for obscenity in San Francisco, Los Angeles, Chicago, and New York for his comedy club bits. At great professional and financial cost, he was nonetheless exonerated in all of the cases except the one in New York. By the time the New York club owner (Bruce’s co-defendant) successfully appealed his conviction, Lenny was dead (broke, and with a needle spiked in his arm). He died a convicted comedian – the last one in our history.

(ht: Chuck Harter]

(ht: Chuck Harter]

December 23, 2003. On that day New York Governor George Pataki posthumously pardoned Lenny Bruce. “Freedom of speech,” he declared, “is one of the greatest American liberties, and I hope this pardon serves as a reminder of the precious freedoms we are fighting to preserve as we continue to wage the war on terror.”

The people who must never have power are the humorless. — Christopher Hitchins

Have we remembered that “reminder”? Yes, and no.

On the one hand, we now enjoy an almost unprecedented degree of free-speech freedom. It is our American badge of liberty — that willingness to tolerate that with which we disagree. On the other hand, anything deemed offensive is today banned on many college campuses. The trend is to create “safe zones” where students are protected from ideas or words that might upset them.

At Clemson University, unwelcome “verbal . . . conduct of a sexual nature” constitutes “sexual harassment.” This definition includes a vast amount of protected speech such as a joke or comment that any student subjectively finds to be offensive.

At Clark University, its Code of Student Conduct prohibits “telling jokes based on a stereotype.” Of course, that is something Lenny Bruce often did in order to combat the kind of prejudice lurking behind offensive stereotyping.

Grinnell College bans “bias-motivated incidents,” which include “an expression of hostility against a person, group, or property thereof because of such person’s (or group’s) . . . religion . . .” By that measure, Bruce’s irreverent “Religions Incorporated” and “Christ and Moses” routines could be banned at Grinnell.

Florida State University’s “A Summons to Responsible Freedom” defines “Sexual Misconduct” to include “unwanted [or] unwelcome . . . sexual or gender-based . . . comments.” By that punitive gauge there is much in Bruce’s How to Talk Dirty and Influence People (1992, reissued 2016) that would catch the censorial eye.

And then there is the capper: Northeastern University’s acceptable use policy, which prohibits the electronic transmission of any material “which in the sole judgment of the University is offensive.” Lenny Bruce’s prosecutors used much the same subjective yardstick to indict him. If “Saint Lenny” were alive, he would have a devil of a time ripping into campus such speech codes, the ones that cabin the mind in solitary confinement.

When Bruce was posthumously pardoned, the comedian Tom Smothers said: “So many of us today owe so much to Lenny Bruce.” Indeed. Regrettably, it is a debt still owed on far too many campuses across this land. No joke!

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Looking Back: Lenny Bruce’s Obscenity Prosecutors & First Amendment Defense Lawyers

Ephraim London

Ephraim London (NY defense lawyer) (credit: Getty Images)

Al Bendich (SF lawyer) (credit: NYT)

Harry Kalven, Jr. (IL appellate counsel)

Harry Kalven, Jr. (Illinois appellate counsel)

Al Bendich (SF defense counsel) (credit: NYT)

The Lenny Bruce story — the one about his obscenity trials (circa 1961-64 in SF, LA, Chicago & NY) — is a remarkable story in the history of the First Amendment as well as in the culture of comedy. You’ll not find the story on the pages of the the United States Supreme Court, though Bruce forever changed the law when it came to uninhibited comedy. You will, however, find traces of that story in the 3,500 pages of trial transcripts titled People v. Bruce (sometime this fall those transcripts will be available in their entirety on FIRE’s online First Amendment Library). There in black-and-white you will find a story about laws invoked in factual situations where it was unclear that any prosecution was warranted.  It is also the story of using the law in ways that at the time were constitutionally suspect. And then there is the human story, the tragic one that first destroyed a man’s career and then destroyed him.

The backdrop of this story is the lawyers who prosecuted and defended the uninhibited comedian. It is said that the dead live on the lips of the living. Mindful of that admonition, below I have listed the names of those lawyers (adapted from my book with David Skover: The Trials of Lenny Bruce). In our judge-centric world, we tend to overlook the lawyers, the ones who are the first to plow the earth of the law. So note their names and roles in People v. Bruce.

The names listed below are those involved in Lenny Bruce’s obscenity trials (as distinguished from, say, his drug arrests and trials).

My experience with Lenny Bruce . . . was the first time I saw in action the government’s use of the might and power of the criminal justice system to crush dissent. William M. Kunstler 

Prosecutors (12)

San Francisco:

  1. Arthur Schaefer (1st Jazz Work Shop obscenity trial)
  2. Albert C. Wallenberg (2nd Jazz Work Shop obscenity trial)

Los Angeles

  1. Johnnie L. Cochran, Jr. (pretrial hearing on motion to dismiss Trolly Ho obscenity case)
  2. Ronald Ross  (consolidated Troubadour & Unicorn obscenity trial)

Chicago

  1. Samuel V. Banks (Gate of Horn obscenity trial)
  2. Edward J. Egan (Gate of Horn obscenity trial)
  3. Willie Whiting (Gate of Horn obscenity trial)
  4. William J. Martin (appeal of conviction in Gate of Horn obscenity trial)
  5. James R. Thompson (appeal of conviction in Gate of Horn obscenity trial)
Richard Kuh (NY prosecutor) (credit: Getty Images)

Richard Kuh (NY prosecutor) (credit: Getty Images)

New York

  1. Gerald Harris (grand jury & pretrial matters in Cafe Au Go Go obscenity trial)
  2. Richard H. Kuh (Cafe Au Go Go obscenity trial)
  3. Vincent J. Cuccia (procedures for appeal of Cafe Au Go Go conviction)

Prosecutors re Appeal of Companion Case (People v. Solomon)

  1. H. Richard Uviller (post judgment motions before New York Supreme Court, Appellate Term)
  2. Harold R. Shapiro (appeal of Cafe Au Go Go conviction before New York Supreme Court, Appellate Term)

First Amendment Defense Lawyers (23)

San Francisco:

  1. Seymour Fried (1st Jazz Work Shop obscenity trial)
  2. Albert M. Bendich (2nd Jazz Work Shop obscenity trial)

Los Angeles

  1. Melvin Belli  (represented by his associate, Charles Ashman, in Troubadour obscenity case)
  2. Seymour Lazar (pretrial matters in Trolly Ho obscenity case)
  3. Sydney M. Irmas (Trolly Ho obscenity case)
  4. Burton M. Marks (consolidated Troubadour & Unicorn obscenity trial)
  5. John Marshall (Illinois extradition order in Gate of Horn obscenity case)

Chicago

Maurice Rosenfield (IL appellate counsel w Kalven)

Maurice Rosenfield (IL appellate counsel w Kalven)

  1. George J. Cotsirilos (pretrial matters in Gate of Horn obscenity trial)
  2. Donald Page Moore (pretrial matters in Gate of Horn obscenity trial)
  3. Samuel Friedfeld (Gate of Horn attorney originally retained to represent Bruce & club owner Alan Robback in Gate of Horn obscenity trial)
  4. Earl Warren Zaidans (Gate of Horn obscenity trial)
  5. George C. Pontiffs (sentencing hearing in Gate of Horn obscenity trial)
  6. Harry Kalven, Jr. (appeal of conviction  in Gate of Horn obscenity trial)
  7. William R. Ming, Jr. (appeal of conviction  in Gate of Horn obscenity trial)
  8. Maurice Rosenfield (appeal of conviction  in Gate of Horn obscenity trial)
Martin Garbus (one of NY defense counsel)

Martin Garbus (one of NY defense counsel w London)

New York

  1. Howard Squadron (bail & bond for arrest in pretrial matters in Cafe Au Go Go obscenity trial)
  2. Lawrence H. Rogovin (appears for Howard Squadron in pretrial matters in Cafe Au Go Go obscenity trial)
  3. Ephraim London (lead counsel in Cafe Au Go Go obscenity trial)
  4. Martin Garbus (co-counsel in Cafe Au Go Go obscenity trial)
  5. Harry Herschman (sentencing hearing  in Cafe Au Go Go obscenity trial)
  6. Allen G. Schwartz (certificate of reasonable doubt for appeal in  in Cafe Au Go Go obscenity case)
  7. Edward de Grazia (§1983 civil rights law suit)
  8. William M. Kunstler (advisory capacity in §1983 civil rights law suit)

* * * *

Attorneys on Appeal for Bruce’s Co-defendant, Howard L. Solomon (People v. Solomon)

  1. Bentley Kassal (bail and bond for arrest and pretrial matters in Cafe Au Go Go obscenity trial)
  2. Herbert Monte-Levy (pretrial matters in Cafe Au Go Go obscenity trial)
  3. Allen G. Schwartz (Cafe Au Go Go obscenity trial)
  4. William S. Miller (sentencing hearing in Cafe Au Go Go obscenity trial)
  5. William S. Miller (sentencing hearing in Cafe Au Go Go obscenity trial)
  6. William E. Hellerstein (appeal of Cafe Au Go Go conviction)
  7. Milton Adler (appeal of Cafe Au Go Go conviction)

FullSizeRender (1)

Posthumous Pardon Petition  re People v. Bruce (1964)

  1. Robert Corn-Revere (counsel for Petitioners Ronald Collins & David Skover)
Robert Corn-Revere (posthumous pardon)

Robert Corn-Revere (posthumous pardon)

* * * *  

 No to be overlooked are the nine club owners who were either persecuted or prosecuted in connection with Lenny Bruce’s performances in their clubs. See The Trials of Lenny Bruce, p. 456 (2002).

There is also the story of the judges who presided over Lenny Bruce’s obscenity trials. That is, however, another post for another day.  Besides, there were so many of them. See The Trials of Lenny Bruce, pp. 454-456 (2002).

→ And finally, there is the story of a relentless journalist who played a key role in the Lenny Bruce First Amendment story.  His name: Nat Hentoff.

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The Great University Chicago Trio (Kalven, Rosenfield & Ming) & Their Defense of Lenny Bruce

IMG_4837

Behold People v. Lenny Bruce.  And note his three lawyers who handled the appeal of his obscenity conviction for his performance at the famed Gate of Horn nightclub in Chicago (December 1962):

Harry Kalven & Maurice Rosenfield

Harry Kalven & Maurice Rosenfield

Professor Kalven, the famed First Amendment scholar, had long been critical of the Court’s ruling in Roth v. United States (1957) and its progeny. He aired those reservations in his seminal 1960 Supreme Court Review article titled “The Metaphysics of the Law of Obscenity.” Thus his interest in People v. Bruce; it presented itself as a test case to reexamine Roth.

William R. Ming, Jr. (credit: U. Chi. archives)

William R. Ming, Jr. (credit: U. Chi. archives)

To help Kalven move from the theoretical to the practical, Kalven collaborated with Maurice Rosenfield and William Ming — two friends, highly reputable lawyers, and colleagues from their University of Chicago Law School days.

Rosenfield, who once co-authored an article with Kalven, was a partner in the law firm of Devoe, Shadur, Mikva, and Plotkin. He had represented Hugh Hefner in the mid-1950s and into the 1960s, and had likewise filed an amicus brief in Roth on behalf of the Authors League of America (Abe Fortas was also on that brief).

Ming was the first African American professor at the University of Chicago Law School. He had been one of Thurgood Marshall’s advisors and worked with Marshall on the Brown v. Board brief (his name was listed between Jack Greenberg and Constance Baker Motley).

There is, to be sure, more to the story, much more.* Suffice it to say that in the end, the trio prevailed when the Illinois Supreme Court ruled in Bruce’s favor.

* See Ronald Collins & David Skover, The Trials of Lenny Bruce (2002), pp. 175-182.

For more on the Chicago connection, see “Laughter & the First Amendment,” Chicago Humanities Festival (Geoffrey Stone, Ron Collins, Judge Diane Wood & Judge William Bauer — introduced by Burt Joseph) (Geof stone was at his comedic best).

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UCLA Law Review Vol. 63, Issue 4

Volume 63, Issue 4 (May 2016)
Articles

Accidents of Federalism: Ratemaking and Policy Innovation in Public Utility Law William Boyd & Ann E. Carlson 810
Protecting Disfavored Minorities: Toward Institutional Realism Joy Milligan 894
Insider Trading and Market Structure Yesha Yadav 968

 

Comments

Defending Criminal(ized) “Aliens” After Padilla: Towards a More Holistic Public Immigration Defense in the Era of Crimmigration Andrés Dae Keun Kwon 1035
Public-Private Divide in Parker State-Action Immunity Sina Safvati 1110
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UCLA Law Review Vol. 63, Issue 3

Volume 63, Issue 3 (March 2016)
Articles

The System of Equitable Remedies Samuel L. Bray 530
Challenging the “Criminal Alien” Paradigm Angélica Cházaro 594
Plenary Power, Political Questions, and Sovereignty in Indian Affairs Michalyn Steele 666

 

Comments

Calibrating the Eighth Amendment: Graham, Miller, and the Right to Mental Healthcare in Juvenile Prison Sara McDermott 712
Mute and Moot: How Class Action Mootness Procedure Silences Inmates Michele C. Nielsen 760
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UCLA Law Review Vol. 63, Issue 1

Volume 63, Issue 1 (January 2016)
Articles

Navigating Paroline‘s Wake Isra Bhatty 2
Regional Federal Administration Dave Owen 58
Exhausting Patents Wentong Zheng 122

 

Comments

Post-Deportation Remedy and Windsor‘s Promise Kate Shoemaker 168
Forget Congress: Reforming Campaign Finance Through Mutually Assured Destruction Nick Warshaw 208
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Journal of Legal Ed Symposium: Ferguson & Its Impact on Legal Education

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The latest issue of the Journal of Legal Education (vol. 65, #2) is out. And here is the table of contents. (Go to this link for PDF files of each article). Beyond the Ferguson symposium, there is an essay on modern criminal procedure along with three book reviews.

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Reverse Broken Windows by  Christopher R. Green

At the Lectern

A Reader’s Guide to Pre-Modern Procedure by David L. Noll

Book Reviews

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AALS, Professor Dan Markel, and the Scholarly Tradition

This week is the annual law professor conference in New York City. The AALS conference is always a wonderful ritual of learning, discussion, and friendship. Indeed, it was the one time of the year that guaranteed a lunch, dinner, or chat with brilliant criminal law theorist and incredible friend Dan Markel. When Dan was murdered in the summer of 2014, I wrote this post for Forbes about his life’s lessons. For colleagues who are going to AALS this year, CoOp will be having a Markelfest in his honor tomorrow night. I wish that I could be there to celebrate Dan and his passion for scholarship and the world of ideas. We miss you, Dan.

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MLAT – Not a Muscle Group Nonetheless Potentially Powerful

MLAT. I encountered this somewhat obscure thing (Mutual Legal Assistance Treaty) when I was in practice and needed to serve someone in Europe. I recall it was a cumbersome process and thinking that I was happy we did not seem to have to use it often (in fact the one time). Today, however, as my colleagues Peter Swire and Justin Hemmings argue in their paper, Stakeholders in Reform of the Global System for Mutual Legal Assistance, the MLAT process is quite important.

In simplest terms, if a criminal investigation in say France needs an email and it is stored in the U.S.A., the French authorities ask the U.S. ones for aid. If the U.S. agency that processes the request agrees there is a legal basis for the request, it and other groups seek a court order. If that is granted, the order would be presented to the company. Once records are obtained, there is further review to ensure “compliance U.S. law.” Then the records would go to France. As Swire and Hemmings note, the process averages 10 months. For a civil case that is long, but for criminal cases that is not workable. And as the authors put it, “the once-unusual need for an MLAT request becomes routine for records that are stored in the cloud and are encrypted in transit.”

Believe it or not, this issue touches on major Internet governance issues. The slowness and the new needs are fueling calls for having the ITU govern the Internet and access to evidence issues (a model according to the paper favored by Russia and others). Simpler but important ideas such as increased calls for data localization also flow from the difficulties the paper identifies. As the paper details, the players–non-U.S. governments, the U.S. government, tech companies, and civil society groups–each have goals and perspectives on the issue.

So for those interested in Internet governance, privacy, law enforcement, and multi-stakeholder processes, the MLAT process and this paper on it offer a great high-level view of the many factors at play in those issues for both a specific topic and larger, related ones as well.