Tagged: Criminal Law

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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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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.

* * * *

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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UCLA Law Review Vol. 62, Issue 3

Volume 62, Issue 3 (March 2015)
Articles

Fixing Public Sector Finances: The Accounting and Reporting Lever James Naughton & Holger Spamann 572
Less Enforcement, More Compliance: Rethinking Unauthorized Migration Emily Ryo 622
Decriminalization, Police Authority, and Routine Traffic Stops Jordan Blair Woods 672

 

Comments

Not Whether Machines Think, But Whether Men Do Jane Stack 760
Fighting for a Place Called Home: Litigation Strategies for Challenging Gentrification Hannah Weinstein 794
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Prosecuting Prosecutors for Perjury? 9th Circuit panel comes down hard on lying prosecutors issue

Screen Shot 2015-01-28 at 10.09.37 AM

Updated: 1-28-15: 2:10 PM, ET

Writing in the New York Observer, Sidney Powell began her column this way: “What will it take to produce honest and ethical conduct from our state and federal prosecutors? The Ninth Circuit has a suggestion. Perhaps a perjury prosecution will do it. In fact, that is exactly what should happen when prosecutors affirmatively lie. This case, Baca v. Adams, involves a clear violation of the Supreme Court’s decision in Napue, which holds that prosecutors cannot put on perjured testimony, much less lie themselves. Unfortunately, as I’ve documented elsewhere, it happens far too often, when it should never happen at all.” I urge readers to take a look at Sidney Powell’s column, which is both informative and powerful.

Even more so is the video of the exchange between Judges Alex Kozinski, Kim McLane Wardlaw, William Fletcher and  California Supervising Deputy Attorney General Kevin Vienna.

Early on in his opening remarks (16 minutes into video), Mr, Vienna stated: “A number of things happened that should have not happened, and we’re not here to defend them.” But he defend them he did, albeit guardedly. It was downhill from there. Things got even worse when Judge Kozinski and his colleagues weighed on the matter of prosecutorial perjury.

The clip is too extraordinary to quote — you really must see it. So, click on the video and watch how Mr. Vienna attempted to make the case for the State as the Judges dug deeper into the issue of proctorial perjury.

Over at Hercules and the Umpire, Judge Richard G. Kopf adds a few comments.

UPDATE: This from John Roemer writing in the Daily Journal (Jan. 27, 2015):

“Misconduct by Riverside County prosecutors has forced the reversal of a 1998 murder­for­hire conviction in a case that raised the ire of Circuit Judge Alex Kozinski and led to his demand that Attorney General Kamala D. Harris fix the situation.”

“Riverside County’s new district attorney, Mike Hestrin, said Monday in a media statement, ‘While we do not concede the prosecutorial misconduct was intentional or malicious … I am requesting that Mr. Baca’s murder case be returned to Riverside County to allow a retrial unmarred by even the appearance of impropriety or unfairness.'”

“. . . [Judge] Kozinski sought to pressure the state officials to resolve the case without having a federal court decide Baca’s appeal. ‘It will look terrible when we write it up and name names,’ he predicted.”

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Considering Criminality in the Sale and Purchase of Sex

The New York state court system this week unveiled its Human Trafficking Intervention Initiative to expand a network of pilot courts specially aimed at linking prostitution defendants with a range of social services, and offering the potential for non-criminal dispositions or reduced charges for these defendants.  The program represents an important step toward addressing the exploitation of women, men, and children through sex trafficking.  The recognition of coercion in the sex trade and of the coexistence of prostitution with needs for housing, healthcare, immigration assistance, job training, and drug treatment echo reforms in the domestic violence context to create more integrated judicial approaches to addressing the needs of victims.

 

These reform efforts raise the question of how much attention should be paid to the market supporters of the sex trade.  Law enforcement has tended to focus on sellers of sex, rather than its purchasers, although every state in the U.S. but Nevada criminalizes both the sale and the purchase of sex.  Our American approach, however, is not self-evident.  Sweden criminalizes patronage but not prostitution, akin to many European countries.  The NY reforms suggest further thinking about allocation of criminal responsibility.

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Stanford Law Review Online: The Violence Against Women Act and Double Jeopardy in Higher Education

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Andrew Kloster entitled The Violence Against Women Act and Double Jeopardy in Higher Education. Mr. Kloster argues that proposed changes to the Violence Against Women Act have potentially serious implications for persons accused committing sexual assault in university proceedings:

The reauthorization of the Violence Against Women Act (VAWA), set to expire this year, has elicited predictable partisan rancor. While there is little chance of the reauthorization being enacted by Congress so close to an election, the Senate draft includes a provision that raises interesting issues for the rights of students involved in sexual assault disciplinary proceedings on campus. The Senate version of VAWA could arguably condition a university’s receipt of federal funds on a requirement that the university always provide an appeal right for both accuser and accused. Setting aside the massive rise in federal micromanagement of college disciplinary proceedings, the proposed language in VAWA raises serious, unsettled issues of the application of double jeopardy principles in the higher education context.

He concludes:

Whatever the legal basis, it is clear that both Congress and the Department of Education ought to take seriously the risk that mandating that all universities receiving federal funds afford a dual appeal right in college disciplinary proceedings violates fundamental notions of fairness and legal norms prohibiting double jeopardy. College disciplinary hearings are serious matters that retain very few specific procedural safeguards for accused students, and permitting “do-overs” (let alone mandating them) does incredible damage to the fundamental rights of students.

Read the full article, The Violence Against Women Act and Double Jeopardy in Higher Education at the Stanford Law Review Online.

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Stanford Law Review Online: Pulling the Plug on the Virtual Jury

Stanford Law Review

The Stanford Law Review Online has just published a Note by Nicolas L. Martinez entitled Pulling the Plug on the Virtual Jury. Martinez takes issue with Judge William Young’s proposal that Khalid Sheikh Mohammed be tried via videoconference from Guantanamo Bay by a jury sitting in New York:

Most people probably figured that the debate over where to try alleged 9/11 mastermind Khalid Sheikh Mohammed (“KSM”) had ended. Indeed, it has been well over a year since Congress forced Attorney General Eric Holder to reluctantly announce that KSM’s prosecution would be referred to the Department of Defense for trial before a Guantanamo military commission. But a provocative proposal put forth recently by Judge William G. Young of the District of Massachusetts has revitalized one of the most contentious legal debates of the post-9/11 era. In a nutshell, Judge Young proposes that an Article III court try KSM at Guantanamo, but with one major twist: the jury would remain in New York City.

He concludes:

Perhaps unwilling to refight the battles of two years ago, Congress has shown no inclination to retreat from its apparent view that KSM may only be tried by a military commission at Guantanamo. As a result, following through on Judge Young’s plan, which could be viewed as an attempt to circumvent the will of Congress, might lead some legislators to harden their stance on civilian trials for alleged terrorists and propose even more disagreeable legislation to that end. This is not to say that creative solutions aimed at fortifying the rule of law in a post-9/11 world should be held hostage to the proclivities of intransigent voting blocs in Congress. Quite the opposite, in fact. But the likely political ramifications of Judge Young’s proposal cannot be ignored, especially in an election year when few members of Congress may be willing to spend their political capital defending the need to hold KSM’s trial in federal court.

Even though Judge Young’s provocative suggestion should not be adopted in its current form, he has moved the conversation in the right direction. Continuing to think imaginatively about ways to preserve our rule of law tradition from external threats is immensely important, particularly in the context of national security crises. For it is when the rule of law can be so easily discarded that it must be most doggedly defended.

Read the full article, Pulling the Plug on the Virtual Jury at the Stanford Law Review Online.

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Stanford Law Review Online: How the War on Drugs Distorts Privacy Law

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Jane Yakowitz Bambauer entitled How the War on Drugs Distorts Privacy Law. Professor Yakowitz analyzes the opportunity the Supreme Court has to rewrite certain privacy standards in Florida v. Jardines:

The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. The case, Florida v. Jardines, has privacy scholars abuzz because it presents two possible shifts in Fourth Amendment jurisprudence. First, the Court might expand the physical spaces rationale from Justice Scalia’s majority opinion in United States v. Jones. A favorable outcome for Mr. Jardines could reinforce that the home is a formidable privacy fortress, protecting all information from government detection unless that information is visible to the human eye.

Alternatively, and more sensibly, the Court may choose to revisit its previous dog sniff cases, United States v. Place and Illinois v. Caballes. This precedent has shielded dog sniffs from constitutional scrutiny by finding that sniffs of luggage and a car, respectively, did not constitute searches. Their logic is straightforward: since a sniff “discloses only the presence or absence of narcotics, a contraband item,” a search incident to a dog’s alert cannot offend reasonable expectations of privacy. Of course, the logical flaw is equally obvious: police dogs often alert when drugs are not present, resulting in unnecessary suspicionless searches.

She concludes:

Jardines offers the Court an opportunity to carefully assess a mode of policing that subjects all constituents to the burdens of investigation and punishment, not just the “suspicious.” Today, drug-sniffing dogs are unique law enforcement tools that can be used without either individualized suspicion or a “special needs” checkpoint. Given their haphazard deployment and erratic performance, police dogs deserve the skepticism many scholars and courts have expressed. But the wrong reasoning in Jardines could fix indefinitely an assumption that police technologies and civil liberties are always at odds. This would be unfortunate. New technologies have the potential to be what dogs never were—accurate and fair. Explosive detecting systems may eventually meet the standards for this test, and DNA-matching and pattern-based data mining offer more than mere hypothetical promise. Responsible use of these emerging techniques requires more transparency and even application than police departments are accustomed to, but decrease in law enforcement discretion is its own achievement. With luck, the Court will find a search in Jardines while avoiding a rule that reflexively hampers the use of new technologies.

Read the full article, How the War on Drugs Distorts Privacy Law by Jane Yakowitz Bambauer, at the Stanford Law Review Online.